Citizens United and the 2016 U.S. Presidential Election
A political op-ed about Citizens United
On January 21, 2010, something terrible happened to the United States. It was not a terrorist attack, pandemic, or banking crisis (though one was already going on). And unless you were a law school professor, politico, or wealthy individual interested in politics, you may have missed it. On that cold and blustery day in D.C., the Supreme Court of the United States (SCOTUS) handed down its decision in the case of Citizens United v. Federal Election Commission.
Although the impacts from this decision are still gestating, it was clear from the get-go that our great republic had taken a strong right-hook to the chin. So what hot topic was the Court analyzing in the Citizens United decision that could cause such a calamity? Campaign finance no less. While campaign finance may not be as provocative a subject as abortion, legalized marijuana, terrorism, or nearly anything that is getting air time on the major networks lately; I can assure you, it has, and is having a monumental impact on our nation and on the current election. So here is a primer on the case that has shaped almost every election in the last half decade.
What was the Citizens United ruling?
In Citizens United, SCOTUS determined that corporations and other legal entities can spend as much as they desire to support or decry a political candidate. While the general rules on direct contributions remain intact, the Court was referring to other forms of support (think commercials and radio ads) and lots and lots of them! On top of that, most of the new money falls outside of the disclosure requirements. When it comes to politics and electoral procedure, any activity that decreases disclosure and transparency is never a good thing.
With regard to corporations, it is somewhat common knowledge that in the United States a corporation is an individual within the eyes of the law. While this legal principle may have seeped into the public consciousness, when considered philosophically, it is an odd concept. A corporation is a conglomeration of many people engaging in an enterprise for profit. Hardly sounds like you or me. Apply this perspective to other beneficiaries of the Citizens United decision (unions, business leagues, special interest groups) and you reach a similar head-scratcher.
Here is what all that has to do with campaign finance. In Citizens United, the Court said (in essence) that these groups, as individuals, possess the right to freedom of speech. Confused yet? Well the Court believes that as individuals, corporations and other related groups share the same First Amendment rights as you and me. It therefore implies that these groups, not their leadership or board-members, but the groups as legal entities, have political preferences and ideals. This point must be repeated: the legal entity itself has political ideals. This concept is crazy and is a complete bastardization of the original intent of legal entities (to shield business owners from personal liability). Furthermore, it seems impossible to imagine a situation in which the founding fathers intended such a preposterous situation when they drafted the Constitution. But what the hell, it’s the law.
Ramifications of the SCOTUS decision
So how does all this legalese apply to the current election? Well that’s up for much interpretation. And while Citizens United had impacted both sides of the aisle, Bernie Sanders’ success with individual donors shows that the GOP is getting hit a lot harder; so hard in fact that we may be witnessing the fateful end of the Republican Party as we know it.
Now, I know what you are thinking, but Jeb Bush, THE establishment candidate just got booted out of the election. However, while Bush’s defeat initially appears to be indicative of an active conservative grass-roots movement, it isn’t. In fact, many candidates like Rubio and Cruz have their own billionaire backers and financiers who are taking full advantage of Citizens United’s relaxed finance rules. And Trump, despite largely self-funding, isn’t succeeding because he is rich. Rather, I believe his success is due in large part to the turbulent political environment which wealthy political benefactors have created through broad use of donations made legal by Citizens United. Thus, the current anti-establishment renaissance is far less an uprising against big institutional donations, as it is the work of extremely wealthy conservative donors and their strategic plan to incite and enable the GOP’s ultra-conservative base.
Accordingly, despite what Justices Kennedy, Roberts, Scalia, Alito, and Thomas said, Citizens United uses an outrageously manipulated interpretation of the 1st Amendment to take power from many and give it to a few; and we all have to live with the consequences.
Alexander S. Balkin is an attorney living and working in San Diego California. He is a former analyst at the U.S. Nuclear Regulatory Commission and Chief Financial Officers Council Finance Fellow. His hobbies include books, books, and more books with equal amounts of golf. The views expressed are his own and do not represent the position of any government agency.