What is “Citizens United,” and Why is it a Problem?

During the 2016 election campaigns, the words “Citizens United” were brought up often, particularly by Senator Bernie Sanders. Those words represent the controversial Supreme Court decision on the case Citizens United v. FEC. 

Background:

In 2002, the Bipartisan Campaign Reform Act, sponsored by Senators John McCain (R-AZ) and Russ Feingold (D-WI), was created to curb big (or soft) money in politics. The BCRA, also known as the McCain-Feingold Act, placed limits on the indirect campaign contributions (like political commercials) that could be made by interest groups, corporations, etc. In essence, the law limited the influence that money could have on politicians and restricted the power of the very wealthy in regard to elections.

Leading up to the 2004 election, progressive filmmaker Michael Moore advertised and released his documentary Fahrenheit 9/11. The film was critical of President George W. Bush. Because the film’s release was so close to the election, the conservative non-profit Citizens United tried to suppress the film on the basis that it was in violation of the McCain-Feingold Act. However, the Federal Election Commission (FEC) ruled in favor of Moore, noting that the film and its promotion represented legitimate commercial activity. (Although the film actually had been advertised and released by the time the ruling was given.)

In 2008, now knowing that film was protected by the Federal Election Commission, Citizens United tried to air a film called Hillary: The Movie. The documentary on Hillary Clinton, who was running against Senator Barack Obama in the Democratic Primaries, was produced solely to criticize her. The United States District Court ruled against Citizens United on the basis that the film violated McCain-Feingold because its purpose was only to undermine a political candidate. In response, Citizens United brought the case to the Supreme Court.

The Ruling:

The question that the Supreme Court needed to answer was whether or not McCain-Feingold’s restrictions on campaign finance violated the First Amendment right of free speech. The way I see it, the question was answered in two parts. The first issue was whether or not spending/donating money is a form of free speech. The second was whether or not corporations/special interests are protected under the First Amendment.

Ultimately, in 2010, the Supreme Court answered the question in a 5-4 decision favoring Citizens United. The majority opinion, written by Justice Anthony Kennedy, ruled that McCain-Feingold’s restrictions on independent campaign expenditures were unconstitutional. Kennedy was joined by Antonin Scalia, John Roberts, Samuel Alito and Clarence Thomas. They contended that restrictions on corporations and unions to spend money independently of political campaigns violated the First Amendment. So, spending money is considered a form of free speech and corporations/special interests are protected under the First Amendment.

John Stevens wrote the dissenting opinion, which was joined by Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

For a more detailed overview of the decision, go here.

Effects of Citizens United v. FEC:

For the sake of transparency, it is my opinion that the Supreme Court’s ruling has been a disaster in American politics. Keep in mind, the “B” in BCRA stood for “Bipartisan.” McCain-Feingold was a rare bipartisan achievement where both Democrats and Republicans were satisfied. While many of the law’s vital provisions are still in effect, its range has been decreased significantly.

Now, corporations have free reign to fund super PACs that spend hundreds of millions of dollars to support political candidates and parties. Such a money-rich environment is perfect for the establishment of a quid pro quo (trade-off) system in which the wealthy few (who already possess massive economic power) influence many of our elected representatives to act against the interests of their constituents and country.

The public opinion on the Supreme Court’s decision in Citizens United v. FEC supports my argument well. In 2010, a Washington Post-ABC poll showed that 8 in 10 people opposed the decision. That number included 85% of Democrats, 76% of Republicans, and 81% of Independents. A Gallup poll showed that 76% of Americans thought there should be limitations on the amount of money that corporations and unions can contribute.

Overturning Citizens United v. FEC remains a prominent talking point in many political circles. The Democratic Party actually has the reversal of Citizens United v. FEC as a major part of its platform. Many Republicans condemn the decision as well. Even Donald Trump has criticized the decision in the past.

The decision made in Citizens United v. FEC was an ironic misstep by the Supreme Court. In an attempt to protect free speech, the Supreme Court actually undermined the weight of the people’s free speech.  Now, they need to do their best to win back the faith of the American people. Considering the recent news surrounding John McCain, it would be a step in the right direction if his attempt to protect our democracy was honored.

 

Sources: MSNBC, CBS News, HillaryClinton.com, BernieSanders.com, The Washington Post, OpenCongress.org Archives, Oyez.org Archives, Gallup

The Electoral College: Anti-Democracy or Institutional Safeguard?

The Electoral College has been the subject of intense scrutiny since Donald Trump’s victory last November. However, I remember hearing debates on the Electoral College well before the age of Donald Trump.

While the abolishment of the Electoral College has become a staple in a number of left-leaning circles, I don’t think that this is an entirely partisan issue. A 2016 Gallup poll showed that just 47% of Americans support the Electoral College, even after Trump’s election. While those numbers did show a sharp increase from 35% in 2011, I would not be surprised if that number has shifted a little bit over the last seven months.

While polls suggest that the majority Democrats support an election system based on the popular vote, Republicans do not support such a system, at least not in such great numbers. In 2011, before our politicians (on both sides) became partisan obstructionists, polls suggested that 54% of Republicans supported the popular vote. Now, it is only 19%. Obviously, something has changed. A rare bipartisan issue has become shockingly partisan.

Regardless, this is an issue that many Americans feel pretty strongly about. After all, the current system has allowed two out of the last three presidents to lose the popular vote. So, what are the arguments in favor or against the Electoral College? Obviously, such a long-standing and complicated political issue has far more than two sides or easily digestible point. But, generally speaking, these are the main two sides that I see:

For the Electoral College:

The Electoral College is not anti-democratic, and, for the most part, the system has generally worked well throughout our history. While it has its issues, the presidents that we have elected have done a good job making the United States among the most advanced civilizations in human history. To destroy among our oldest institutions undermines the legitimacy of previous elections and administrations and the ideology that the country stands for.

Furthermore, the United States is not a direct (or pure) democracy. We are a democratic republic and a representative democracy. While I could potentially see a direct democracy (where the people ultimately make all the major decisions), the reality of the matter is that such a feat would have been virtually impossible in the 18^th century. It was actually Alexander Hamilton that said, “Real liberty is never found in despotism or in the extremes of Democracy.” This sentiment was held by the vast majority of our founding fathers.

The Electoral College, even with all of its flaws, is designed to protect us from popular autocrats that fool the people into voting against their own interests. When the founding fathers made the Constitution, there was a genuine fear that such a possibility could occur. So, they created a system that would act as a safeguard. While the power has been used by individuals before, it has never changed the actual outcome of an election.

Against the Electoral College:

As of now, there is too much power in the hands of the states and electors. After all, two of our last three presidents were elected without securing the popular vote. This indicates that there is a serious discrepancy between the will of the people and the power of the states.

The only votes that truly matter are those in swing states. Presidential candidates spend an uneven amount of effort in states like Florida, Ohio, and Pennsylvania because they know that these are ultimately the states that will decide who wins. Candidates can effectively ignore the states that don’t follow their party’s ideology. To a lesser extent, the same concept is true in states with small amounts of electors. So, if you’re a struggling citizen of Rhode Island, don’t expect a shout-out from anybody next election cycle.

The bigger issue concerning the Electoral College seems to be that the citizens in the nearly 40 states that consistently go red or blue every year essentially cast votes that don’t really matter. Because the electoral system is set up as winner-take-all in 48 out of the 50 states, a presidential candidate effectively only needs 50.1% of the vote (could actually be less) of a state to secure all of the electors’ votes. In this line of thinking, if you voted for Hilary Clinton in Florida in 2016, your voice wasn’t heard. In essence, a conservative in liberal California has little reason outside of pride to vote. The same is true for a liberal in conservative Texas.

The Compromise:

I believe that the best solution to this predicament is modeling the voting process in every state after the hybrid systems used by Maine and Nebraska.

In Maine and Nebraska, those in the minority receive a voice. Simply put, electors in those two states choose based on the popular vote of their districts. While gerrymandering is an issue that absolutely needs to be addressed in their system, it allows the minority party to be heard. The two electoral votes designed to represent the state’s two senators defer to statewide popular vote.

These hybrid congressional district systems, while imperfect, would be an improvement over the current Electoral College if applied to all 50 states. It allows the Electoral College to continue to act as a safeguard against tyranny, while giving the people better representation.

I’m not going to pretend like I have all the answers. Personally, I am not a fan of the Electoral College. I actually lean more toward abolishment. However, above everything else, I want a compromise. At the very least, there needs to be a reward for those in the minority party that perform their civic duty. So long as that issue is addressed, I believe that most of the Electoral College’s critics will be somewhat satisfied.

Sources: Gallup, American Government: Power & Purpose, NPR, Adam Ruins Everything: Why the Electoral College Ruins Democracy