Monday, April 16, 2012

We the Corporations?

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 view.

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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