Citizens United Explained

This week’s post is a bit longer than usual but bear with me – it deals with the most important Supreme Court decision in at least a generation. This is a review of a truly epic essay written by legal analyst Jeffrey Toobin in this month’s New Yorker, entitled “Money Unlimited, How Chief Justice John Roberts orchestrated the Citizens United Decision“. The essay will be relevant for years to come, and although it’s a bit long (just under 10,000 words), I highly recommend a full read of the original.

The Citizens United ruling is the latest in a back-and-forth struggle over campaign finance laws that has been waging for over a hundred year. For decades, the Supreme Court has been accused by conservatives of judicial activism – legislating from the bench by overturning laws created by democratically elected legislatures. According to Toobin, the tables completely turned in 2010 when a more conservative Court went out of its way to overturn nearly a century of Court precedent and federal law. But first, a little background.

McCain Feingold

In 2002, with bi-partisan support, Congress passed the McCain-Feingold campaign finance laws which prohibited corporations and unions from funding campaign ads in the leadup to an election. The justification was that candidate ads (in support of an individual or party for an election) were different from issue ads (in support of an idea in general). The latter was still permitted under the law. Essentially, a corporation could run as many adds as it want on a specific issue (abortion rights for example), but the minute it endorses or opposes a candidate just before an election, it is breaking the law.

In 2003, the law was challenged in the Supreme Court (McConnell v. FEC) and was upheld. In 2007, it was challenged again (FEC v. Wisconsin Right to Life), and survived again, but suffered a few wounds that watered down its mandate. McCain Feingold was to be the main target of the Citizens United case.

Citizens United

Inspired by the success of Michael Moore’s Fahrenheit 911, Citizens United, a conservative non-profit organization attempted to air a documentary, Hillary: The Movie, just before the 2008 Democratic presidential primaries. The FEC found the documentary to be “electioneering communication” and forbade it. To the Supreme Court they went.

The argument offered by Citizens United was very clever. They saw no problem with the McCain-Feingold law but instead argued that Hillary: the Movie was merely a documentary, protected as free speech, and was not, a campaign ad. What was at question, supposedly, was not the constitutionality of an existing law, but the nature of a small and obscure documentary. The decision came down to two points:

  • Corporations and individuals have the same 1st Amendment right to free speech. If the government can ban a documentary, then what’s stopping it from banning a book? A documentary is basically a form of free speech, just like a book, and we would never prohibit a corporation or group from publishing a book.
  • Money is speech. In the 1976 case of Buckley v. Valeo, the Court equated free speech with spending money because “every means of communicating ideas in today’s mass society requires the expenditure of money”.

In spring 2009, the Court ruled 5-4 that the law does not apply to the documentary…almost. In June of that year, the Court announced that it would hear the case again, but this time, to decide whether or not to overturn previous decisions. The Court does not announce that it is “considering” overturning precedent unless it has already made up its mind. Without being asked to do so, the 5 Justices were determined to rule not just on the small and obscure documentary, but on the constitutionality of the entire law and campaign finance regulation as a whole. In January 2010, to nobody’s surprise, the Court ruled 5-4 that McCain Feingold was unconstitutional.

In his majority opinion, Justice Kennedy wrote, “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.”

The Aftermath

Corporations and unions can spend as much money as they want on political campaigns. More money in politics – that’s what was missing!

For the sake of brevity, I’ll let Justice Stevens, who retired from the Court before the final decision on Citizens United was handed down, speak for me:

“Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law…The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare…Unlike our colleagues, they had little trouble distinguishing corporations from human beings.”

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Colbert Super PAC Explained

How is it that a Comedian is teaching Americans more about civics than any politician? 

A Brief Timeline

January 2010: The US Supreme Court rules 5-4 in Citizens United v. the Federal Election Commission, that the government may not prohibit organizations such as unions, corporations and political action committees (PACs) from spending money on political campaigns. The ruling was based on the premise that groups of citizens have the same rights as individual citizens and that spending money is a type of free speech protected under the First Amendment.

Shortly thereafter: PACs, which are essentially non-profit organizations that exist to advance the outcome of an election, political issue or legislation, begin to mutate into Super PACs. The main difference is that PACs were restricted in how much money they could spend on election campaigns, whereas Super PACs can spend unlimited amounts. Also, they are not permitted to coordinate with candidates for office. Super PACs are still required to disclose the source of their funds.

May 2011: Stephen Colbert establishes a Super PAC called Americans for a Better Tomorrow, Tomorrow, and begins soliciting viewers for donations to make tomorrow better. It should be noted here that Stephen’s lawyer is Trevor Potter, the former Commissioner and Chairman of the FEC (the losing side in the Supreme Court case referenced above).

August 2011: Colbert Super PAC’s first TV ad hits the Iowa airwaves. It was weird. The second was mildly disturbing.

September 2011: Stephen Colbert forms a shell corporation (usually established so that companies can do things indirectly in order to avoid publicity and taxes), which allows Stephen to anonymously direct unlimited amounts of money to his Super PAC. I repeat, anonymously! All legal!

January 2012: Stephen announces that he will explore a run for President in the South Carolina Republican primary election. To comply with non-coordination requirements, Stephen legally handed over control of his super PAC to fellow comedian and former boss, Jon Stewart. Colbert Super PAC began to be referred to as the “Definitely not coordinating with Stephen Colbert Super PAC”. As the two men pointed out, the fact that they were close friends and business partners was not a legal barrier.

South Carolina Ads: In the run-up to the primary, Stephen suggested that Mitt Romney is a serial killer. Since he could not get his name onto the ballot in time, and since Herman Cain had dropped out of the race already, Colbert Super PAC urged South Carolinians to vote for Herman Cain as a sort of perverted proxy candidate. And then there was the attack ad on how super PACs carry out too many attack ads.  Even Samuel L. Jackson pitched in to narrate this ad, which actually attacks Stephen.

Conclusion: Through Herman Cain, Stephen managed to garner only 1.1% of the vote, good enough for a distant 5th place. But still, 6,324 registered Republican in South Carolina felt it worthwhile to vote for Stephen. I mean Herman. Not too shabby.

In the end, what Colbert and Stewart have shown is that the current interpretation of the law has so many loopholes that will certainly be exploited by moneyed interests. If Colbert and Stewart can legally claim to not be coordinating with one another and get away with their brand of fake political advocacy, there is nothing to stop corporations from wielding even more influence in an electoral system that is already saturated with money.

FYI – here is a list of Super PACs and the candidates they support.

Spend Freely but Don’t Coordinate

The role of Super PACs in elections continues to unravel as Colbert and Stewart try to expedite the process and thumb their noses at big money in politics.

The ridiculousness of the American electoral process just became more apparent on Thursday night when Stephen Colbert announced that he will explore the possibility of seeking the Republican nomination for the Presidency of the United States in the upcoming South Carolina primary election. Colbert’s recent electoral activity has included the establishment of a political action committee, known as Colbert Super PAC, in the hopes of influencing/mocking the elections.

Super PACs are allowed to raise and spend unlimited amounts of money as a form of free speech that is protected under the Constitution. The main restriction placed on them is that they are not permitted to coordinate with any candidate they are supporting, which led to Colbert’s announcement on his show Thursday night. In order to run, Stephen would be disallowed from coordinating with the PAC that bears his name. Just before announcing his almost-candidacy, and in the presence of his lawyer (and former chairman of the Federal Election Commission), Colbert officially signed over leadership of Colbert Super PAC to his old boss and fellow Comedy Central fake news anchor, Jon Stewart. The PAC was then referred to as the “Definitely Not Coordinating With Stephen Colbert Super PAC”.

Of course it is absurd that Jon Stewart can run a political action committee in support of (and founded by) Stephen Colbert and claim that they will not be working together, which is precisely what the two hope to expose. Every major candidate currently has at least one Super PAC working on their behalf, and as the fake news duo has shown, it will be nearly impossible to prove coordinating between candidates and Super PACs. This, in spite of clear professional and financial links between the candidates and the PACs that support them.

Colbert’s decision to flirt with the race came in the wake of a recent poll conducted by Public Policy Polling in which the comedian, with 5% support, finished 6th among Republican candidates – beating Jon Huntsman by one percentage point. It is too late for Colbert to have his name included on the actual ballot in South Carolina, meaning his campaign must rely on write-in votes next Saturday. Expect at least a few humorous commercials to hit the airwaves, in South Carolina and beyond.


Free Speech for Everyone and Everything

Newt gets an easy $5 million and the First Amendment cringes 

In early May 2011, Stephen Colbert established a political action committee called Americans for a Better Tomorrow, Tomorrow, better known as Colbert Super PAC, which allows the comedian to raise unlimited amounts of money from corporations, institutions and individuals. Colbert has stated that the money would be raised not just for political ads, but also “administrative expenses, including but not limited to, luxury hotel stays, private jet travel, and PAC mementos from Saks Fifth Avenue and Neiman Marcus.”

Colbert’s most recent political project (he attempted to get his name on the ballot in the 2008 South Carolina Democratic primary) is, more than anything, a playful yet charged response to the 2010 Supreme Court decision Citizens United v. Federal Election Commission, which in common parlance, declared corporations to be people. More specifically, it stated that the government may not prohibit unions and corporations from making independent expenditures about politics based on the First Amendment right to free speech.

The type of speech in question here is referred to as independent expenditure, meaning that a candidate is not permitted to coordinate in any way with those doing the speaking. Candidates can, however, increasingly rely on wealthy donors, who have been emboldened by the new precedent. Late last week, Sheldon Adelson, a billionaire casino owner, made a $5 million contribution to Winning Our Future, a Super PAC that supports Republican candidate Newt Gingrich for president. Adelson’s contribution is 1,000 times the legal limit of what he would have been able to contribute to Mr. Gingrich’s official campaign.

Proponents of transparency would argue that at least we know about the contribution and its source. Not quite, and once again, it was comedian Stephen Colbert that captured, and exploited, the ridiculousness of the law’s current interpretation. In September 2011, Colbert and his lawyer, who happens to be the former Commissioner and Chairman of the Federal Elections Commission, set up a 501(c)(4) – a civic organization with the same right to speak (spend money) as a person, but do so anonymously – or as Colbert prefers to call it, a “campaign finance glory hole”.

We now know of one rich man’s $5 million contribution to help his long-time friend become President. Imagine how much money is being thrown at the elections that we do not, and will not, know about.