In the aftermath of the January 2010 landmark Supreme Court decision Citizens United v. Federal Election Commission, and the rise of “super-PACs” on both sides of the aisle and the dangerous effects it has on parties, candidates and election outcomes, it is time for serious, meaningful, lasting and reasonable campaign finance reform.
What was Citizens United about and what effect did the decision have on the influencing and financing of campaigns?
{mosads}The case was brought about because Citizens United, a conservative 501(c)(4) not-for-profit corporation engaged in issue advocacy and education, filed a complaint with the Federal Election Commission (FEC) charging that 2004 pre-election ads for left-wing film producer Michael Moore’s movie “Fahrenheit 9/11” (a political film that attacked President George W. Bush’s response to 9/11) constituted political advertising and thus under then-current law — the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act) — could not be aired 60 days before an election or 30 days before a party primary or convention. On Aug. 5, 2004, the FEC dismissed the complaint.
Thereafter, during the 2008 campaign cycle, Citizens United determined that what’s good for the goose is good for the gander and decided to run TV commercials promoting its film, “Hillary: The Movie,” which sought to “educate” the American people as to the record of then-Sen. Hillary Clinton (D-N.Y.), a candidate — like now — for the Democratic nomination. Thereafter, Citizens United was cited by the FEC for violating provisions of the McCain-Feingold Act. The result of the FEC action prevented Citizens United from running their movie ads. As a result, Citizens United brought an action in U.S. District Court for an injunction against the FEC ruling, permitting it to run their ads. The court denied the injunction and went on to decide that the movie had no other purpose but to discredit Clinton’s candidacy for president. The Supreme Court decided to hear the case, briefs were filed and oral arguments were heard, and thereafter the Supreme Court issued its decision on Jan. 21, 2010.
In a 5-4 decision, the Supreme Court held in favor of Citizens United and found that corporate funding of independent political broadcasts during election cycles cannot be limited under the First Amendment.
The Supreme Court struck down a provision of McCain-Feingold Act that prohibited all corporations — both for-profit and not-for-profit — and unions from broadcasting “electioneering communications” within 60 days of a general election or 30 days of a primary or convention. The Citizens United case did not affect the continuing federal ban on direct contributions from corporations or unions to candidate campaigns or political parties.
The effect of the Supreme Court decision is that although U.S. corporations and unions cannot contribute directly to campaigns or candidates, they can expend whatever funds they want to engage in “issue advocacy and education” at any time during or between election cycles.
In light of the Citizens United case, how do we limit the amount of influence and donation from outsiders? I suggest the following steps be taken to level the political playing field so that the biggest voices heard during election campaigns come from the candidates themselves and the citizens who have the paramount interest in the outcome.
U.S. House races
- Citizens can only contribute to a House candidate in the district of their domicile.
- Congress shall determine amounts of contribution by individuals, unions and corporations.
- National, state and local parties shall have caps set on their contributions to House candidates, directly or indirectly, to be determined by Congress.
- A corporation (not-for-profit or otherwise) or union with a nexus to a congressional candidate can make a monetary contribution to a candidate. The “nexus” must be a test of contacts with the district to be determined by Congress.
- Corporations (not-for-profit or otherwise) and unions must disclose to shareholders/members and the FEC the amount of monies expended for “electioneering communications” and where such monies were expended prior to or contemporaneous with the communications being made. They must also disclose the content of the communication.
- A corporation (not-for-profit or otherwise) or union must advertise in its own name and must disclose within the advertising its name and nexus to the district in which the ad appears.
U.S. Senate races
(The rules for Senate races will be the same for those of the House, except that they will apply to the respective state as opposed to a congressional district.)
- Citizens can only contribute to a Senate candidate in the state of their domicile.
- Congress shall determine amounts of contribution by individuals, unions and corporations.
- National, state and local parties shall have caps set on their contributions to U.S. Senate candidates, directly or indirectly, to be determined by Congress.
- A corporation (not-for-profit or otherwise) or union with a nexus to a state can make a monetary contribution to a U.S. Senate candidate. The “nexus” must be a test of contacts with the state, to be determined by Congress.
- A corporation (not-for-profit or otherwise) or union must disclose to shareholders/members and the FEC the amount of monies expended for “electioneering communications” and where such monies were expended prior to or contemporaneous with the communications being made. They must also disclose the content of the communication.
- A corporation (not-for-profit or otherwise) or union must advertise in its own name and must disclose within the advertising its name and nexus to the state in which the ad appears.
Presidential races
- Citizens can contribute to presidential primaries and general elections in amounts determined by Congress; however, such donations could only be utilized by campaigns in the state of their domicile.
- Congress shall determine amounts of contribution by individuals, unions and corporations.
- National, state and local parties shall have caps set on their contributions to general election campaigns and conventions, directly or indirectly, to be determined by Congress.
- A corporation (not-for-profit or otherwise) or union can make a monetary contribution to a presidential candidate’s primary and/or general election. Such donations can only be utilized by campaigns in the state of their nexus. For instance, if General Motors has a plant in Michigan, it can donate in an amount to be determined by Congress and can only be utilized in the state of Michigan.
- A corporation (not-for-profit or otherwise) or union and unions must disclose to shareholders/members and the FEC the amount of monies expended for “electioneering communications” and where such monies were expended prior to or contemporaneous with the communications being made. They must also disclose the content of the communication.
- A corporation (not-for-profit or otherwise) or union must advertise in its own name and must disclose its identity within the advertising.
Self-financing of federal campaigns
- A candidate for the House, Senate or the presidency can expend whatever personal wealth her or she wishes to contribute without limit; however, once a candidate passes the threshold of contribution in an amount decided by Congress, the U.S. government will match that contribution to the opponent.
Today, citizens can only vote in the district of their domicile. A citizen does not have the right to vote in the district of their choosing. Corporations and unions should only be allowed to influence an election if they have a nexus to that district/state. It makes no sense for outsiders to have undue or unfair amounts of influence on elections in which they have no nexus. These new rules would make representatives more beholden to their constituents. I always found it very strange when a New York congressman would attend a fundraiser for his own campaign in Arizona. Also, matching a personal wealth contribution beyond a threshold by the U.S. government will insure that no citizen will have the chance to “buy” an election.
The elimination of outside influence would reduce the vast amounts of money candidates and parties would need to raise and would give more of a voice to those who have the greatest stake in the outcome of an election: the voters, corporations, unions and interest groups within a particular district or state. Today, it is possible for outside groups to wield more power and influence than the candidates themselves, and that is wrong.
Now is the time for fair and reasonable campaign finance reform. It is not in America’s interest to continue to allow elections to be conducted in disregard of the rights of candidates and the people most affected by an election’s outcome.
Blakeman is professor of public policy, politics and international affairs at Georgetown University’s School of Continuing Studies and was a member of President George W. Bush’s senior White House staff from 2001 to 2004. He is also a frequent contributor to Fox News and Fox Business Channel.