This post originally appeared in the Los Angeles Daily Journal. You can read the entire post by clicking here.
While the Republican presidential nominee and
the ultimate victors of contests throughout the nation may be unknown,
one thing is clear: the 2012 election will break campaign fundraising
records. This is the first presidential election since the Supreme
Court's fateful decision in Citizens United v. FEC. Since that decision,
there has been a proliferation of campaign spending, most notably by
so-called "Super PAC" organizations. These are independent-expenditure
only political committees. Republican-backed Super PACs have already
raised $81 million to date this election cycle. (Interestingly, only 17
individuals account for contributing nearly half of that amount to Super
PACs.) Because of regulations promulgated under the internal revenue
service, contributions by certain non-profit organizations to these
Super PACs can remain undisclosed, and therefore hidden from public
So how did we get to this place of largely anonymous, largely
unlimited campaign spending? The Court's decision in Citizens United,
while surprisingly incremental in some ways, opened the doors for the
record-breaking spending we are now seeing. In Citizens United, the
Court essentially came to two conclusions. First, the Court said that
speaker-based identity restrictions are impermissible. This means that
if a restriction cannot be validly imposed on an individual, then it
similarly cannot be imposed on a corporation. Second, the Court found
that independent expenditures are not corrupting. So go ahead and spend
$100 million in support of your favorite candidate (or against that
candidate's opponent). As long as your expenditure is "independent" it
cannot corrupt, according to our nation's highest court.
Although it may seem
abundantly obvious, there are a number of reasons why for-profit
corporations - artificial entities made up of individuals - should not
be treated as the same as individuals in the campaign finance context.
While certain non-profit corporations are essentially voluntary
political associations, and therefore restricting their speech raises
important political expression and association concerns, the same is not
true of for-profit corporations.
Most campaign finance restrictions present First Amendment questions
that ask the Court to analyze the speaker's interest in spending money,
the public's interest in hearing campaign speech, and the government's
interest in restricting the speaker from spending that money. In the
case of corporate electoral speech, the interests of each of these
groups weigh in favor of restrictions. In addition, the interests of
another group, which the Court routinely discounts - those who speak but
not by spending money - also favors regulation.
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