Due to a highly inappropriate breach of etiquette by President Barack Obama in his State of the Union Address, the recent U.S. Supreme Court decision in the Citizens United versus Federal Election Commission (FEC) case has received renewed public attention. In this case, the Supreme Court held that the First Amendment permits corporations and unions to use their general funds to produce their own, independent political campaign advertisements.
In my view, this decision was an outstanding reaffirmation of the U.S. Constitution First Amendment freedoms of speech and of the press. Furthermore, this decision was compatible with what I believe would be the ideal campaign finance reform for both our nation and New Jersey: No prohibitions as to who may contribute to elections, no limitations as to the amount a person, corporation, union, or any other entity may contribute, but full disclosure within 24 hours of all contributions, regardless of source, whether made directly to the campaign or by means of an independent expenditure.
To best understand this issue, it is necessary to first review the holding in Citizens United. The Supreme Court in this case did strike down part of the McCain-Feingold Act that prohibited union and corporate sponsored issue advertisements in the days shortly before a federal election. At the same time, the court upheld the disclaimer and disclosure requirements in McCain-Feingold requiring those who produce political advertisements to disclose the names of contributors.
Contrary to most election law lawyers and legislative advocates, I have long believed that the intent, purpose, and original understanding of the First Amendment to the United States Constitution should preclude 1) any prohibitions against corporate or union federal election contributions, either to a campaign or by independent expenditure; or 2) any limitations as to the amount any person or entity may so contribute. In support of my contention, I give you the literal language of the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.
Does the First Amendment permit Congress to pass laws abridging the freedom of speech, or of the press, as long as the speech or press is published by a corporation or union? Absolutely not.
Does the First Amendment permit Congress to pass laws abridging the freedom of speech or of the press of a person or entity by prohibiting publication expenditures over a certain amount? Absolutely not.
Furthermore, I have never understood the rationale of the prohibitions on either corporations or unions making contributions in federal elections. Under present federal election law, Nazi sympathizers or members of the Ku Klux Klan are permitted to make contributions to candidates for President, while corporations and labor unions are prohibited. The irrationality of this is apparent.
The argument is often made that if corporations and/or unions are permitted to donate to federal election campaigns, they will use their “deep pockets” to buy elections. An article in the New York Times, hardly a bastion of conservatism, by David D. Kirkpatrick entitled “Does Corporate Money Lead to Corruption?” on January 23, 2010, in the wake of the Citizens United decision addressed the empirical evidence on this issue.
The article first discussed the factual findings in the Citizens United opinion written Justice Anthony M. Kennedy, a centrist jurist. Justice Kennedy found that no evidence was produced in 100,000 pages of legal briefs to show that unrestricted campaign money ever bought a lawmaker’s vote. Furthermore, Kirkpatrick quoted Kenneth Mayer, a professor of political science at the University of Wisconsin-Madison, as stating, “There is no evidence that stricter campaign finance rules reduce corruption or raise positive assessments of government. It seems like such an obvious relationship but it has proven impossible to prove.”
There is, however, a more fundamental issue regarding corporate or union contributions: If a candidate’s campaign has received millions of dollars from a corporation, union, or billionaire, and the amount and source of such contribution has been publicly disclosed, isn’t it up to the voters to decide whether such contributions have made the recipient candidate beholden to a nefarious person or entity?
The public interest is served by mandating full and immediate disclosure of all such contributions, whether made to a campaign or by independent expenditure. The public interest is not served by the enactment of campaign finance laws that infringe upon First Amendment freedoms.
It is not difficult to establish enforcement machinery to guarantee immediate and full disclosure. In this era of computer technology, full disclosure is easy: a person or entity who makes a contribution or independent expenditure should be required to submit on-line to the FEC a report of same within 24 hours. Likewise, a campaign that receives such a contribution should be required to file on line with the FEC a report of receipt of same within 24 hours. Finally, independent expenditure contributors and campaigns should continue to be required to list a “Paid for…” disclaimer on their television commercial or other media item. Violators of all these disclosure requirements should be subject to serious civil and/or criminal penalties.
Finally, a word is in order here about the President’s breach of etiquette in criticizing the Citizens United decision in the presence of the Supreme Court justices during his State-of-the-Union Address.
When President Franklin D. Roosevelt gave his State-of-the-Union address in 1937, he was involved in a continuing conflict with the Supreme Court regarding their decisions setting aside various items of New Deal legislation. Nevertheless, President Roosevelt showed due respect for the dignity of the Supreme Court and his own office of the Presidency by refraining from criticizing any court decision during his speech. Instead, he stated the following:
“The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government.”
Indeed, FDR’s above remarks about the Supreme Court and in their presence constitute the quintessence of the politics of civility. President Obama often cites FDR and the New Deal as a model for his programs. He would have avoided demeaning both the Supreme Court and his own office if he had followed the Roosevelt example instead of committing his historic faux pas in his State-of-the-Union Address.
Alan J. Steinberg served as Regional Administrator of Region 2 EPA during the administration of former President George W. Bush. Region 2 EPA consists of the states of New York and New Jersey, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, and seven federally recognized Indian nations.