OPINION: A Supreme Court ruling in 2010, designed to clarify the parameters of free speech, has created a monster. Citizens United v. Federal Election Commission made much of corporate rights. It paid significantly less attention to corporate responsibilities. In enabling a literal reading of the First Amendment, the Supreme Court voided precedent and has allowed corporate entities to circumvent already flimsy campaign finance restrictions. In doing so, it has reduced transparency and accountability.
Concern over the capacity of corporate power to influence electoral outcomes has long exercised Congress. Legislative restrictions date back to 1907. Each reform, culminating in the McCain-Feingold Act, limit the amount any one individual or corporation can contribute in a given electoral cycle. The system is augmented by the provision of capped federal financing. Already weakened by the decision by Barack Obama to withdraw from federal financing in 2008 because of his campaign’s spectacular grassroots funding success, the system was completely destroyed by the Supreme Court’s decision.
In Citizens United, the Supreme Court held that so-called independent Super political action committees (Super PACs) can raise unlimited funds from corporate interests or trade unions as long as there is no formal link to political campaigns.
The decision has transformed the electoral landscape. As The Economist noted on February 25 this year, Super PACs linked to each of the remaining Republican contenders for the forthcoming presidential election raised more than the campaigns themselves. By no means is this a phenomena linked to the Republican Party; President Obama’s campaign is equally indebted to the structure.
The Supreme Court had intended to protect free speech. The majority opinion was set out by Justice Kennedy. “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech,” he argued. “Political speech is indispensable to decision-making in a democracy and this is not less true because the speech comes from a corporation rather than an individual.”
Far from strengthening free speech, the decision in Citizens United has contributed to its erosion. To make matters worse, the consequences were foreshadowed in the dissenting opinion.
“Unregulated corporate electioneering can drown out the voices of real people. It can decrease listener’s exposure to relevant viewpoints. It can generate cynicism and disenchantment. It can chill out the speech of those who hold office and it decrease the willingness and capacity of citizens to participate in self-government,” argued Justice Stevens.
Nowhere is that cynicism more justified than in the battles over the implementation of the Dodd-Frank Act, the legislation introduced in the aftermath of the sub-prime crisis.
As I noted on these pages last month, the financial services industry has used the Super PAC as an opportunity to advance its agenda -surreptitiously.
Restore our Future, the Super PAC most associated with Mitt Romney, is dominated by the financial services industry. You would not know this from its website. No information is provided on financing or purpose, thus transacting around disclosure obligations.
The stated rationale of the Super PAC is that “it is time that we restore our future by supporting candidates who have worked in the private sector and created jobs, who understand the economy, and who believe in America, American workers, and American values.” Only one candidate is mentioned: Mitt Romney. Restore is careful to note that it is “not authorized by any candidate or candidate’s committee”. The focus on values is equally deliberate. It obfuscates the real arena for change for many of those providing funding.
As former republican pollster Kevin Phillips noted in his political history of the American rich, Wealth and Democracy, the Achilles heel in American politics is its reliance on the financial sector. “Patriotism and rage militaire are a second track along which Middle American radicalism and frustration can vent itself. But the economics will out,” he noted with prescience.
The situation has worsened with time. The stakes for the financial services industry have heightened. The Super PAC allows the agenda to be set in less than transparent ways. The result is a debasing of democracy.
The issue was brought into clear focus in a recent edition of The Economist. The newspaper devoted its entire letters page recently to the impact of Dodd-Frank. Christopher Dodd complained that “critics of Dodd-Frank have had ample opportunity to craft changes to the legislation. Instead they tried to kill it. Now, as its implementation begins, those critics have the choice of working with regulators to make the system safer, or simply roll back sensible reforms”. Separately, the Deputy Secretary of the Treasury, Neal Wolin took The Economist to task for questioning the cost of the reform agenda. “Counting the pages in a bill (or comment pages from an industry resisting reform) is a silly way to measure cost,” he wrote.
Allowing corporations to hide behind financing models that allow political agendas to be forged that safeguard their own narrow self-interest but masquerade as protection of values is an insult to the very democracy the First Amendment was designed to protect. It corrupts those values and, ultimately, the political system itself.
Justin O'Brien is professor of law and director of UNSW's Centre for Law, Markets and Regulation.
This article first appeared in The Conversation.