Tuesday, November 9, 2010

Citizens United and the 2010 Mid-term Election

With the 2010 mid-term election in the rear view mirror, the impact of Citizens United can now be practically assessed. For those that spent any time watching television in October 2010, the impact of Citizens United was on full display during this election advertising cycle. 2010 saw a new record set on the amount of money spent on election advertising and electioneering, with some estimates coming in at more than $3 billion being spent, much of it on television spots. Some argue that the ads this election cycle were more vicious than ever before. Without question, they were more plentiful. Of course, Citizens United is the U.S. Supreme Court decision that allows unfettered (and in some cases anonymous) contributions from corporations to specific political and judicial candidates.

A couple of important points to consider:

First, when judges are elected, particularly in partisan contested elections, the potential for nefarious outcomes is elevated. To this point, see this Washington Post editorial entitled "Putting a Halt to Judicial Elections." Further, I have recently dropped an essay with the Iowa Law Review, where i discuss recent empirical evidence that finds that judges that are elected in partisan contests are significantly more likely to find for corporate defendants and interests than are those judges that are appointed. The essay is entitled: "Procuring Justice: Citizens United, Caperton, and Partisan Judicial Elections" and can be accessed at the Iowa Law Review Bulletin.

Second, much of the corporate electioneering is being steered into state local elections by prominent out-of-state groups and organizations, that are crypticly named "Americans for Safety and Strength" or "Americans for Fiscal Responsibility," etc. These organizations provide no ideological affiliation, but do provide cover for many corporate contributions that remain undiscoverable in many instances. Professor Atiba Ellis hosted a Citizens United conference at the West Virginia University College of Law, wherein he and law professors from the University of Akron discussed the impact of Citizens United on this 2010 election cycle.

Citizens United, as described many times in this blogspace, enables an atmosphere of diabolical electioneering, and we have just now begun to see its impacts.


    This past election demonstrated, in most cases, that spending money gets you elected. Record spending and vicious ads dominated the campaign trails, evidencing that money can and does speak louder than ideas or policy. In Florida, the governor's race saw the most expensive campaign in history, with Rick Scott spending approximately $73 million dollars.
    That is just one example of spending which made this the most expensive mid-term election in U.S. history, with almost $4 billion dollars spent. It's not hard to make the link that the Supreme Court's ruling earlier this year in United Citizens at the beginning of this year reaffirmed unfettered campaign contributions as part of our political culture and that is ok if corporations hide behind PAC’s to contribute unlimitedly. Therefore the political process becomes less about democracy and more about power. It seems that the legacy of the Supreme Court’s decision in Reynolds v. Sims has faded into the background. In Reynolds, the Supreme Court gave the principle “one person, one vote” true meaning. In the words of Chief Justice Earl Warren, “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” In seems that as corporations can take the steering wheel on financing political parties, we are getting further away from our true democratic principles. After all, the constitution does start with “We, the people.”
    As far as elected judges are concerned, states have long grappled with whether judges should be appointed or elected and the impact that each has on the accountability and decision making of judges on the bench. It is hard to make broad generalizations about judges across the U.S. and its an issue that will be longstanding in our ballots. However, its perhaps naïve to think that judges, of all people, should be our moral compass.
    To echo the comments of actor Kevin Spacey on NPR, one way to curb political spending, which largely is spent on advertising, is to have free political ads. Senator McCain in 2002 and 2003, sponsored free air time bills that would have made airing political advertisements a non-profit business. I don’t think its preposterous to state that media using public airwaves should not be allowed to profit from allowing elected officials (public servants) to use the airwaves for public announcements.

  2. Obama purported to primarily finance his presidential campaign through individuals with the average contributions in the $100 range. Yet, he had special interest groups funding his campaign as well. It takes money to fund a campaign. No politician is going to turn away money, even if it has ties to, say, nuclear power.

    BCRA aims to limit the amount any individual or corporation can spend to support a candidate during an election. (I think legislation should go further to limit how much candidates, themselves, can contribute.) Campaigns are the arena where legislative regulations can work to create an equal playing field. As for corps and orgs independantly launching campaigns for or against politicians, to me, that is regulating free speech at its core.

    I concur with Kathryn's post reference to Spacey's proposal. Giving free access to anyone interested would be a great way to open communication lines and give all voices a megaphone. Last year the New York Times had an oped piece regarding the Citizen United case that said generally conservatives and libertarians praised the Supreme Court ruling's preservation of the First Amendment and freedom of speech, but that liberals and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.

    Sure, money gets you a better microphone through which one is heard, but America is a place where everybody has voice and an ability to be heard.

  3. This year it was hard to watch 15 minutes of television without 5 minutes of it being negative political campaign ads. It is hard to believe any political campaign that advertises government "spending cuts" when it has been the most expensive political campaign season in history. As discussed above, the explosiveness of political ad spending is a result of the Citizens United decision. Overall, election funding was made up of anonymous corporate dollars provided by diverse non-profit "groups". Such "groups" were created to support politicians who will turn their heads to tightening corporate regulations. In turn, the economy will keep plunging, the unemployment rate will rise, and big corporations will have an out. We should follow in the footsteps of other countries who have put a stop to excessive campaign spending. Many countries do not charge for political airtime because the citizens find it is unjust and unfair. Britain, for example, has even outlawed the "attack ads" that are used habitually in the United States. Hopefully free air time will allow our politicians to focus on fixing the economy and lowering the unemployment rate.

  4. The ad nauseum that resulted from political campaign ads this year definitely reached an all time high. I find it outrageous that candidates will spend of hundreds of millions of dollars for a job that returns nickels on the dollar spent to get elected. It seemed this year that the more I listened to these slam campaigns the less I wanted to vote for the candidate sponsoring them. Our economy is obviously not in as deep of a recession as thought if corporations can find as money to donate to one's campaign.

    Additionally, I agree with your comments about electing versus appointing judges. Especially in cases which are run by bench trials, having a judge who was appointed lends the opportunity for a more fair trial. This is one of the advantages to trying a case in Federal Court, lifetime appointments. When a judge knows they must rely on the people for re-election, they no longer has the ability to have a unbiased opinion. Now, they have to make sure their opinions fit in with ideology of their constituents and the judicial system becomes skewed.

  5. A perfect answer as to why the people affected by the BP spill have no real hope of any recourse.

    With so much of the political campaign money comming from big corporation like BP, there is no way that judicial decisions will significantly favor the little guy.

    Even if there are small victories in court, the overall precedent will remain that big corporation is not responsible to put right things that get destroyed in their wake.

    While this is quite a tangent, it stems back to the fact that the judges deciding these cases are put into their positions by donations of big corporations and as the saying goes, most will not bite the hand that feeds them.

  6. LaureenG, FIU Law

    I do agree that elected judges are more susceptible to influence. All judges should be appointed so that they are more inclined to be on the side of "what's right".

    If it is not an option to appoint all judges; hopefully, they will recuse themselves when there is a conflict of interest. I really don't see that as being possible in all situations.

    Hopefully, judges, whether elected or appointed, when it truly matters, will do the right thing and not be influenced by anyone or anything.

  7. I want to agree with the views that an elected judge will do the right thing when it comes down to it...but as many of us realize (as Kathleen suggested) money goes a long way and this election has proven to be a "put your money where your mouth is" type situation. The plain fact is money = influence and power; whether it be an elected judge, senator, governor and even the President of the U.S. If these candidates did not have enough funds to "waste" on bashful and demeaning ads many would not have gotten elected.

    It really made me sick to watch all these hateful ads that attacked another candidates personality, characteristics or even lifestyle that has nothing to do with how they would perform as a leader...these politicians need some more stringent laws and a lesson in "what fair game is."

    An elected judge whose goal is to become reelected cannot but help but to be biased as to one of their highest contributors...if they are going to get that support again, they are going to have to rule accordingly...

  8. David H. Snider (FIU)November 16, 2010 at 5:04 PM

    Money does influence power. An elected official is most concerned about re-election. It is very rare that a politician will be elected just on a solid platform which gains widespread support. Instead, the political climate in the United States promotes the often disgraceful and untrue character attacks against the competition. Who do you think funds these attacks? If the politician wants to be re-elected, he or she will support the corporate donor with the deepest and most readily available pockets. The corporations are making decisions on behalf of the entire electorate when they are able to offer the desperate candidate the most bang for the vote. By allowing corporations with selfish interest to donate far more than any number of citizens can, they are essentially elevating their status above the average Joe. Once again, the corporations have gained a little more control over us.

    Regarding judges the same is true. A judge who has to essentially campaign for re-election and appointment in a heated political battle is just as susceptible as the politician that voted for him or her to judgeship. Why do we believe a judge is more righteous than the next guy or gal?

  9. Kevin Pl. (FIU)
    The fact that corporations are allowed to give unlimited amounts of money to campaign contributions is bad enough. But when you add in the fact that they can do it anonymously it created an even greater opportunity for corruption. This gives corporations the ability to secure their provate interests in favor of the public's. Citizen's United needs to be overturned, or at least changed so that coporate contributions can be identified and recipients of them can be held accountable for bias actions.

  10. The ads in this election cycle were quite vicious. However, contentiousness in politics is nothing new. In my view, the bigger problem is that these ads actually work. If they didn't work, interest groups would not be so keen on spending on them. It seems that while the ads remain vicious, Americans keep falling for them. Nuance is lost on most of the viewers of these ads and the programmers know it. Instead of actually explaining the issues, the ads scream at viewers terms that will frighten or startle. Forget explaining a viewpoint, as if a 30 second spot could achieve that anyway. For example, say "Obama" and "socialist" in close succession to the right audience and the message has probably been effectively sent, no matter how untrue.

  11. JULIE ST (FIU)
    If this last mid-term election was any indication of the impact of Citizens United, then I forsee a presidential campaign of epic proportion. The fact that campaign contributors are allowed to make "unfettered" donations "anonymously" is frightening. Campaign finance needs to be transparent with spending caps. We would like to know exactly who we are voting for.
    Furthermore, I truly believe that there needs to be an end to judicial elections. I have spoken to countless people who have no idea who they are voting for in judicial elections, and when a judge is on the ballot for re-election, most people just vote "yes," without any first hand knowledge. We elect our officials who in turn should have our confidence to appoint judges.

  12. Johanna D. (FIU)

    The new campaigning financing rules and organizations like Citizens United should not be allowed. There should be a spending cap placed on donations and specially ones from big corporations. Economic support from these types of companies would lead politicians and judges to side with the companies that supported them instead of an injured citizen. It will be interesting to see the results of the BP cases after this recent oil spill incident, that is if the cases even make it to court. And I agree with Julie, most voters are uneducated as to who the judges are and vote for the first name they see on the ballot.

  13. Brian C. (FIU)

    Like most people, I was pretty annoyed with all the negative ads being run on TV and the truck loads of flyers that were sent to my house this election season. What was more frustrating about the whole situation is that we were given all this negative information but given very little nonpartisan facts about the candidates. It seems like the candidates spent more time bashing their opponents than they did informing voters about why we should vote for them. Regardless of where they were getting the money or how much they were getting and spending, why didn't they spend that money to explain to the voters what makes them the best candidate? Not to mention the name recognition that they gave their opponents. Why would you want to spend money repeating your opponent's name?! When it comes time to vote wouldn't you want your name to be the one people remember, for better or for worse? I just scratch my head and wonder when someone with some sense will run for office.

  14. Lian D.
    The implications of the Supreme Courts holding in United Citizens v. FEC have been seen in this past election cycle. A dangerous precedence was established when the Court struck down the McCain–Feingold Act that prohibited all corporations, both for-profit and not-for-profit, and unions from broadcasting electioneering communications. Essentially the court opened the floodgates for millions of dollars to be spent in smear campaigns by both across the nation. According to AdvertisingAge.com, political spending this election year will be over 4 billion dollars. Allowing these corporations to donate millions anonymously is dangerous to the legitimacy of our nations political system. Ncauz001, mentioned Britain’s reaction to smear campaigns; I believe that should be the American course of action as well it would provide an excellent chance to speak about what really matters, policy and governance.