Dismay over the direct impact of the Supreme Court's decision in Citizens United v. F.E.C. has been both swift and widespread. However, those concerned about the potential of unbridled expenditure distorting the democratic process need to be aware that Citizens United may well be only the tip of the iceberg. Although the decision did not go so far as to hold that the use of money for political speech should be free of all restrictions, the import of the ruling, and much of the language used in the opinion, may well be seized upon as the battering ram to destroy most, if not all, of the present regulations on the amassing of money for, and spending of money in, political causes.
On January 27, the Federal Court of Appeals for the District of Columbia heard oral argument in two cases consolidated as SpeechNow.org v. FEC The tone of that argument may, unfortunately, foretell the future of current regulations of the use of money in political battles
Under the Federal Election Campaign Act (FECA), any group with the purpose of influencing the election of candidates and which spends or takes in more than $1000 is a political committee subject to Federal law. That law requires that the committees register. It limits individual contributions to such a committee to $5000 a year (and contributions to all candidates and committees to $108,200 in a two-year period.) It requires that such committees report their contributors. Finally, although it does not limit the amount of money such a committee can spend, it does provide that the committee may not act in concert with a candidate or political party.
Speechnow is an organization which qualifies as a political committee. It states that its mission is the preservation of First Amendment rights, and thus it seeks to support candidates it perceives as supporting those rights. In pursuit of that goal, it filed suit in the U.S. District Court for the District of Columbia challenging the constitutionality of the FECA insofar as it requires registration of political committees, disclosure of donors to such committees, and limits contributions by individuals to such committees. After losing its request for a preliminary injunction (an order suspending the enforcement of the FECA while the litigation proceeded), Speechnow asked for, and got, a referral of the case on the constitutional issues to the Court of Appeals.
Which is why the Court of Appeals held an en banc hearing (one involving all of the judges of the court) on this case last Wednesday. What was apparently clear from that argument is that all of the judges had read Citizens United. When the attorney for Speechnow (the plaintiff and hence usually the first to argue, as the bearer of the burden of proof) began his argument, the court suggested that he wait until the lawyer for the FEC tried to justify why Citizens United did not mean that the regulations at issue were unconstitutional, thus implying that the case was Speechnow's to lose. The purport of the questions put to the government's lawyer was that corruption was the only legal justification for campaign finance laws, and that corruption has now been held by the Supreme Court to be an inadequate justification for such laws. Thus, asked the bench, what is the legitimate rationale for these regulations?
It therefore appears that the truly dangerous part of the Citizens United decision is not the notion that corporations, like Soylent Green, is people (an idea embraced by the Supreme Court as far back as 1886.) It is, rather, Justice Kennedy's naive view that any direct exchange of favors for political advocacy is punishable by bribery laws and thus need not be addressed by campaign finance regulation, and his equally simplistic belief that the appearance of corruption is a nonissue:
"The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt...The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy...The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials."
Were this country made up of intelligent, well-educated, skeptical, independent thinkers, perhaps Justice Kennedy's analysis would be correct. However, it is not, which is precisely why corporations and other entities want the freedom to spend as much money as possible in any way possible in political races. The electorate, or at least a distressingly large portion of it, makes its decisions on the basis of 30 second sound bites, scare tactics, and simplistic appeals to atavistic impulses such as fear of the unknown and inability to empathize. The uncontrolled infusion of money into the political bloodstream enables those who have the most resources to do what run-of-the-mill advertising often aims to do - convince us to do things damaging to ourselves but beneficial to the advertiser. Should Speechnow ultimately prevail, the protections erected by Federal law between the uninformed voter and untrue propaganda designed to attract votes by any means necessary will almost completely crumble, and thus usher in a world in which the under-funded truth will find it increasingly difficult to compete