After the Supreme Court issued the Citizens United decision, Keith Olbermann compared it to Dred Scott, the 1857 Supreme Court case that held that a slave could not sue for his freedom regardless of the merit of his case because he was “property,” and therefore, did not have the right to use the court system to remedy injustices against him. The effect of that case was to strip even former slaves living in the North of basic rights, inflaming the regional divide and helping spark the Civil War. Olbermann claimed that the effect of Citizens United might be more dire.
That, obviously, is a stretch. The most drastic impact of the decision was short-term. Congress, as well as state legislatures, had created campaign finance rules based on the assumption that they could treat corporations differently from individuals. When the Citizens United decision came down, the effect was to nullify entire campaign finance schemes, leaving vacuums that allowed corporations to contribute large sums to candidates without making their contributions public. However, those vacuums are now being filled with new, Citizens United compliant, regulation. Here are some examples of regulations that are likely compliant:
- “No person or entity can donate more than $1,000 in any calendar year to any single candidate or more than $3,000 in any calendar year to any political party.”
- “Any entity (defined as any collection of individuals) that donates more than $100 in any calendar year to any political candidate or party, or which sponsors an advertisement advocating for or against the election of any candidate, must file a detailed itemization of all of its political expenditures with the Federal Election Commission, including amounts paid, which corporate accounts the funds were drawn from, and which officers or directors authorized the donations.” (The FEC would further be required to publish all disclosures online.)
- “All political candidates must keep funds received from corporations or other entities in accounts separate from their general funds. If a candidate uses corporate funds to pay for television advertisements, the advertisement must include a four-second portion that both visually and audibly indicates that funds donated by a corporation were used to pay for the advertisement, and the commercial must then identify the corporation(s).”
- “All political candidates must provide a complete list of all corporate donations they have accepted on their website, including the amount received from each corporation.”
Regulations like these would blunt the ability of corporations to influence elections. The fear of Citizens United seems to be that BP will be able to buy off politicians with huge donations and then rampantly drill all over the country with no sense of safety, spewing forth oil directly onto the cutest wildlife possible. However, if the regulations above were in place, nearly all politicians would turn down donations from BP for fear of the backlash from voters.
Thus, for those who view Citizens United as a problem, the solution is to require the disclosure of more information. Big corporations are not particularly popular. The Citizens United case left the door wide open for Congress and state legislatures to place quite strict disclosure requirements on corporate donations. So, with the right regulations, the more corporations bankroll campaigns, the more obvious it will be to voters that certain candidates are cozying up to big corporations.
As an example, prior to Citizens United, Meijer attempted to build one of its large box-stores in Acme, MI. The town counsel refused to grant permission unless certain conditions were met. Meijer chose to secretly fund a recall initiative of several of the members of the town council. When the media discovered that Meijer money was behind the effort, the town council members sued based on a Michigan law preventing corporations from funding political campaigns. Their lawsuit was thrown out after Citizens United because the law became invalid.
However, the Acme problem was a temporary one created by the regulation vacuum left behind by Citizens United. If some of the Citizens United compliant regulations outlined above had been in place, Meijer would have either had to publicly fund the recall effort or do so secretly, in violation of the law. The public reaction to the Meijer recall effort was extremely negative, once it came to light. Thus, had tough, Citizens United compliant regulation been in place, Meijer probably would not have used the public, legal route to finance the recall effort anyway.
So, despite the reaction of our hyperbolic media, Citizens United did not handcuff legislators’ ability to regulate campaign finance. Congress and the states still have effective options available to prevent corporations from being able to buy off politicians. Citizens United had some undesirable effects, but it certainly was no Dred Scott.