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This is the first of a three part series dedicated to some potential future Supreme Court cases. Each issue is near and dear to conservatives and liberals alike- campaign finance reform, gay marriage, and affirmative action. First up, there is a case making its way to the Court out of Montana challenging a state law that bans direct corporate expenditures on elections. Citing the fact that their law, in effect since 1912, was passed and enforced in response to actual cases of a history of corporate corruption in the state and the fact that corporations in Montana can still easily be involved in the political process through PACs, their Supreme Court did not find that Citizens United was controlling. After the Montana Supreme Court upheld the law, a federal district judge issued an injunction against its enforcement and the US Supreme Court issued a temporary order preventing the state from enforcing the law. Montana claims this is a concerted effort by out of state corporations to change their election laws.
On many occasions, I have been an ardent supporter of Citizens United. I have argued that corporations, for legal purposes, are “persons” as a perfunctory review of the definition in Black’s Law Dictionary would prove. That being so, states can regulate the conduct of corporations just as they can regulate the conduct of any other person. When talking about the political process, regulations on conduct are treated more seriously and strict scrutiny is applied since these regulations may impinge on free speech and free association rights. Make no mistake: campaign contributions and political advocacy IS speech. To use any other argument would lead to illogical conclusions. For example, the whole purpose of advertisements in the commercial area is to persuade one to buy a product. Likewise, such is the case with political advertisements and advocacy. If the advertisement in commercial area is to buy a product and is a form of speech, then the commercial in support of a candidate or against another candidate is a form of the speech. The only difference is that one is political and the other is commercial. Therefore, contributions and expenditures are political speech.
Even in strict scrutiny instances, the government can pass laws regulating the activity provided there is a strong state interest in doing so. Most of these campaign finance were NOT passed in response to actual cases of corruption; they were passed to remove the PERCEPTION of corruption. As any psychologist will explain, there is a huge difference between reality and perceptions. In effect, these laws are nothing but “feel good” legislation.
What is grossly overlooked in the criticism is the actual practical effects on Citizens United. There is no doubt that there has been an influx of money into the process. However, with or without that decision, this tendency was evident before the Supreme Court spoke. This year, we are projected to have our first billion dollar president. Most of the criticism since Citizens United is directed against the outside groups, not individuals or PACs, perhaps because collectively Democrats were the bigger recipients of PAC and individual donations. Prior to Citizens United, the biggest spenders were groups like MoveOn, ActBlue, EMILYs List, and labor unions- all groups that leaned liberal and Democrat. In effect, Citizens United served as a great equalizer to balance the message. Liberals argue that the decision opened the door to corruption of the process, but it was a door they opened long before the Court decided Citizens United.
Look at the case of the defense industry. Most acknowledge that defense contracting is perhaps the one most open to abuse, waste, pork and corruption. Yet, many would be surprised to know that as a percentage of total campaign spending, the defense industry ranks very, very low on the food chain. If less money leads to “corruption,” does more money lead to more corruption? There is a huge difference between making contributions to curry political favors or influencing legislation and making a contribution in general. Many people may be surprised to know that Obama received more money from the banking/finance industry than did John McCain in 2008. Using that liberal mindset, those contributions “bought” them Dodd-Frank and other onerous regulations. While it may be true that the banking industry had a say in writing that legislation, it did NOT occur at the electoral level, but at the legislative level. People often confuse lobbying with campaign contributions. Can the government regulate the activity of lobbyists? Absolutely and they should because the vast majority of actual cases of corruption involve lobbyists, not campaign contributors. Naturally, any industry has a stake in proposed legislation and should be allowed a voice provided they play by the rules.
Another point overlooked regarding the practical effects of Citizens United is what did all that money buy? There is no argument that the amounts of money have grown exponentially with each successive election. However, for all that money, in the overall sense, whether liberal or conservative, the chance of “getting their person elected” lies somewhere between 45% and 55%. There may be some groups that have better success rates than others, but in those cases there are usually other variables at work. For example, in 2010 among the top 20 PACs, 12 of them were Democratic yet in Senate races where they spent in excess of $50,000, they were 101-104. Among the three Republican PACs, their record was 50-9, but that was a banner Republican year money or not. Among outside group expenditures, the liberal success rate was 32-37 while conservative groups were 50-24. Many look to groups like American Crossroads or the Club For Growth, it needs to be mentioned that they won high profile races in Kentucky and Florida. Overlooked is the fact that their “man” lost in Colorado and Nevada. In fact, the Club For Growth won 8 and lost 6- not overly influential. In fact, the best performing group was liberal: Commonsense 10. Even in a strong Republican year, ActBlue managed to win ten races and the NEA/AFT collectively won 17 races.
Many people decry the tenor of the messages. However, again statistics tell a different story. Looking at political expenditures by the top 10 Super PACs ad outside groups, when the message was in support of a candidate regardless of party, the success rate was 60%. However, when the message was to attack an opponent, the success rate drops to 47.8%. While it may be true that some of these messages cross the line of decency, as against Rand Paul in Kentucky, it is a fact that Rand Paul won regardless.
This is indicative of elitist, liberal thought. In their world, the average individual voter is incapable of making a rational decision when it comes to choosing a candidate. They believe that voters are automatons that respond only to advertisements and robo-calls and the like. They believe that people cling to their guns and Bibles. To them, it is inconceivable that someone would vote for a Rand Paul or a Marco Rubio. To them, commonsense would dictate a voter pulling the lever for the Democratic candidate. They irrationally believe, despite evidence to the contrary, that dollar bills necessarily translate to votes. Their solution is to protect us from our own alleged gullibility and stupidity.
So what about the Montana law? Many within the legal community believe the Court will eventually use this case to overturn Citizens United. Remember the case was decided 5-4, so only one Justice needs to be flipped. Some have commented that Kennedy is the one since he provided the crucial fifth vote. Others have speculated that Scalia is the one since he has decried, in some statements, the influx of money. Most opponents of Citizens United point to the statement by Ginsburg, co-signed by Breyer, when the stay was issued. Generally, statements are never released in these cases, but the fact one was indicates that there is some hand-wringing on the Court regarding Citizens United and Ginsburg was actually leading the Montana towards an argument. It indicates the Court is willing to take on campaign finance reform efforts, particularly at the state level. Despite everything, it is doubtful that Roberts would deliver a victory to Obama here. Instead, I foresee another 5-4 decision upholding Citizens United but one that allows for some wiggle room for state regulation.