Deck 8: Business in Politics

Question 1

After Citizens United are the rules for corporate participation in elections still too strict, about right, or too relaxed? Why?

Answer 1

As per this case concern, the supreme court held that corporations have the same rights as people to spend money in elections. Essentially the rules for corporate participation in elections are far too relaxed.
The problems that result from this are following:
• This leads to creation of Super PACs , which are purportedly independent and can raise and spend unlimited money, because they don't contribute to candidates. These superPACs have EV bolstered the influence of biggest and wealthiest corporations.
• Legal Monet laundering - tax exempt groups.
• The corporate money flowing into elections distorts democracy and create undue influence of big corporations in governance and legislation at later stages.
• Unlimited corporate spending is not only bad for democracy in the sense that it out shouts the voices of people, but it is also bad for business, employees and shareholders of the corporation.
One can consider that corporate participation in elections is relaxed. The amounts in which the corporations are instructed to spend during the campaigning period that influence the campaigns must be limited. Also, corporations must have more control over the election. People must be provided more autonomy in order to caste their own vote without any impact from the corporations who take benefit of their immense money muscles to coerce support for certain individuals. On the other end, each voter has their individual voice and the corporations must not demoralize this equality.

Question 2

Should Congress legislate in response to Citizens United ? If so, what should it do?

Answer 2

The Citizens United v/s the Supreme Court case created an uncertain situation for corporations from the perspective of their participation in the political process called elections. Corporations do not want to project a picture of being labelled partisan in as far as their political affiliations are concerned. At the same however, they would want to push their advocacy through trade associations or other front groups.
Given this situation, the Congress should act as a result of some dissatisfaction that the case generated. Some of the recommended actions include:
• Passing a constitutional amendment : Areas include regulating corporate expenditures, prohibiting corporates from using general treasury funds, ban all corporate political activity.
• All corporate political expenditures greater than a certain set amount should require shareholder approval by majority vote.
• Creating public funding for elections : This recommendation would enable candidates to receive Government funds for the purpose of campaigning. When these funds are sufficient, candidates can use them for election/re-election. Thus there would be no need or an apprehension of expenditures by corporate interests.
• Banning of foreign contributions : As per election law, foreign nationals are prohibited from making contributions to candidates or incurring expenditures. Enforcement would be very productive.
If legislations on the above lines are passed by the Congress, they will address the issues that arose in the Citizens United v/s the Supreme Court case to a great extent. Eventually corporate participation in elections would be transparent, regulated and healthy with the potential to weed out corruption in the activity.

Question 3

Was Hillary: The Movie a disguised campaign ad or a journalistic documentary? Should the Court have created an exception in the law to permit its broadcast? What could it have done?

Answer 3

Citizens United, CU a political advocacy group, supports conservative candidates and the election issues that they raise. Towards this agenda it made a 90 minute documentary in 2008, called Hillary: the movie. It was to be shown during presidential primaries. The documentary was critical of HC, the democrat presidential nominee.
It is important to decipher whether the documentary was electioneering communication and what was its application to Hillary: the movie. The McCain-Feingold Act, 2002 amended the FECA, banned all soft money contributions, and attempted to reduce the influence of issue ads. An issue ad purports to address broad issues but actually promotes particular candidates. It is obvious that the content in the documentary implicitly asked the audience to vote against HC. Neither was there any genuine discussion of issues, so it constituted electioneering communication. By this token the film is only liable to inform the voters that senator HC is not fit for office. So the McCain-Feingold Act applies and hence the movie cannot be shown. As such, the documentary was a disguised campaign ad and not a journalistic documentary.
However following the re-argument instructions given by the Supreme Court in the case, the final decision read that the bans on independent expenditures and electioneering communications by corporations were unconstitutional. An exception from the government's ban on independent expenditures for advocacy and electioneering communications (permitting the documentary's broadcast) could not be made for the following reasons:
• The documentary was an electioneering communication as there were 34.5 million cable subscribers and it reached 50,000 or more voters.
• The ads in question were a feature-length negative ad and hence not a journalistic documentary.
• A nominal fraction of the film's budget being spent by corporations is not a valid reason.
The Supreme Court could have based its decision on the following premises:
• The application of first amendment protection to corporations does not ban speech irrespective of the status of the speaker.
• Political action committees are not a viable solution for corporations as it restricts their speech.
• Independent expenditures by corporations have not shown to lead to quid pro quo corruption.
The above arguments better serve the decision of the Supreme Court in striking down the bans on independent expenditures and electioneering communications by corporations as unconstitutional.

Question 4

Should the First Amendment protect corporate political expression? If not, where should the line be drawn for corporations between freedom and restrictions? Should First Amendment protections apply only to individual citizens?

Question 5

If you were on the Supreme Court would you have voted in the majority or joined the dissent? Why?