Case Analysis Essay on Citizens United vs. FEC: Money in Elections & Democracy

Introduction

In the case between Citizens United versus the Federal Election Commission, the American Supreme court stated that political spending was protected in the First Amendment as a form of free speech. A central concern of modern democracies is to design mechanisms that prevent money from becoming a distorting factor of competition between political parties and candidates (Duignan, 2019). Money deforms electoral democracy at the moment in which it causes conditions of inequality in competition or effectively alters the will of the electors. This occurs when access to resources by candidates and parties occurs in unequal conditions. It also occurs when there are economic interest groups that can influence the outcome of elections with money (Smith, 2018). It also occurs when the expenses of a party or candidate are paid for with undue public resources of some government agency; when candidates or parties use money from illegal sources. Additionally, it occurs when there is a differentiated application of the rules of control of political financing to benefit the party or official candidates, and also when the monies used by political parties, legal or illegal, are channeled into the purchase of votes. Money, especially money connected to special economic interests during campaigns, is a danger to democracy and the supreme court was wrong in its ruling.

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The financing of election campaigns by private companies and sources is common practice in many countries. The reasons are diverse, one of the strongest being the recognition that parties and candidates need sufficient resources to finance the competition, and that no other sources are available. Campaigns have become more sophisticated and require more resources. But for some, this represents the replacement of the political debate with marketing. In the same vein, the parties manage to mobilize less and fewer supporters for the campaign. What was civic engagement in the past has now become paid service (Toobin, 2012). Money in politics, as it is necessary for parties to survive in electoral processes and maintain their organizational structures, is, on the other hand, the element that most influences in weakening the legitimacy of an electoral process (Gerken, 2013). The client politician, in his or her objective to instrumentalize the emotional and economic deficiencies of the voter, exerts psychological violence that prevents him or her from exercising his or her right to vote in a fair, responsible and informed manner.

Money and politics are symbols of two radically opposed principles in modern democracies. Money represents the inequality between people, an aspect of reality that jumps to the eyes with each step that we take in the streets. Wealth is unevenly distributed and other important capital, such as training and social networks, also depends on it. Already politics represents an ideal, the dream of a society different from the current one. In election campaigns, money plays a key role (Bowler & Donovan, 2016). The data on campaign funding speaks very clearly: the more resources a candidate has, the greater the chance of being elected and few can escape this rule. Some because they already have the public visibility that others need to build through communication campaigns. Others are part of strong parties and end up being elected with fewer votes than those whose legends performed worse (Potter, 2017). But they are exceptions and the rule of the current political game is clear; the total volume of resources mobilized in the campaigns is a strong indicator to predict the electoral outcome.

The classic expression of equality of citizens in the electoral process is the universality and equality of the vote. With all differences in economic and social life maintained, each citizen has the same weight in the ballot box and, protected by secrecy, he/she will assign his/her vote to the candidate of his choice. The first problem with the resources allocated to electoral campaigns is that they undermine a basic principle of modern democracies: equality of citizens in the electoral process (Duignan, 2019). The data demonstrate that campaign resources from donations have a preponderant weight in the definition of the electoral result. In this way, the possibility of unlimited financial contributions to political parties undermines the principle of equality and universality in influencing electoral processes, and this can greatly influence the electoral result directly. Inequality in contribution ends up unfolding on another level. With deregulated private funding, candidates who represent a more affluent clientele will have more resources available than others who represent interests with less economic power (Potter, 2017). The imbalance is manifested when candidates with very few resources organize modest campaigns, competing with millionaire applications.

Unbalanced electoral competition due to the blatant inequality of resources between campaigns threatens the electoral game, distorting representation in favor of those who mobilize more money. This financing model is co-responsible for corruption, mismanagement, and abuse of resources for private purposes (Gerken, 2013). It removes from politics those who want to discuss ideas and distorts representation in favor of those who have the most capacity to mobilize resources. Privately funded policy funding may also jeopardize future elected officials at a time when donors charge the bill and require differential treatment (Gerken, 2013). There are many possibilities for meeting these demands, from intermediation in solving problems with public administration to influencing the legislative process. This last dimension of political financing, as a gateway to corruption, concentrates much of the critical arguments about private electoral financing in many countries. It is important to decrease the influence of money on election results and mandates. The best way to do this would be to place a ceiling (Bowler & Donovan, 2016). This would continue to allow companies to donate, but the ceiling would mean that the candidate or parliamentarian is not completely dependent on it.

The illegal private financing that enters the campaigns is probably even more difficult to identify, verify and monitor. This form of funding generally implies, as in the case of the diversion of public resources, the use of cash that cannot be tracked. In addition to damaging equity in the fight, illegal private financing entails the commission of other crimes, such as embezzlement, money laundering, fraud and tax evasion, simulation of operations through shell companies or facades, among others (Hansen, Rocca, & Ortiz, 2015). In several countries, rules are also established to register and publish donations, with the names of donors, from a certain amount, and in addition to regulating the income of political parties in terms of public and private financing, limits are also set ordinary and campaign expenses.

The limits to donations are of no use if there are no limits to campaign expenses. The effect of the absence of ceilings on the expenditure side leads to an upward run of waste and gives enormous power to political financing intermediaries who are not subject to the limits and transparency regulations to which candidates and parties are bound (Toobin, 2012). The protection that the Supreme Court gives to the activities of these interest groups based on the defense of the rights of freedom of expression and association erases the border between the electoral and the non-electoral sphere and eliminates the possibility of a specific regulation that controls spending on campaigns. Ideally, the bodies in charge of supervising political financing and imposing sanctions should have a clear and sufficient legal mandate, transparent processes for the appointment of personnel with technical solvency, political independence, and guarantees of permanence free of external pressures. These bodies must also have an adequate budget and a culture of institutional mission, in which the focus on preventing faults is privileged. As for fines, the loss of public financing and penal sanctions, they must be proportional to the lack and sufficiently credible in their application to serve as deterrents.

References

Bowler, S., & Donovan, T. (2016). Campaign money, Congress, and perceptions of corruption. American Politics Research, 44(2), 272-295. https://doi.org/10.1177%2F1532673X15594232

Duignan, B. (2019). Citizens United v. Federal Election Commission. Retrieved from https://www.britannica.com/event/Citizens-United-v-Federal-Election-Commission on 4th May 2019.

Gerken, H. K. (2013). The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties. Marq. L. Rev., 97, 903. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5905&context=fss_papers

Hansen, W. L., Rocca, M. S., & Ortiz, B. L. (2015). The effects of Citizens United on corporate spending in the 2012 presidential election. The Journal of Politics, 77(2), 535-545. https://doi.org/10.1086/680077

Potter, T. (2017). Money, Politics, and the Crippling of the FEC: A Symposium on the Federal Election Commission's Arguable Inability to Effectively Regulate Money in American Elections. Admin. L. Rev., 69, 447. http://campaignlegal.org/sites/default/files/Trevor%20Potter%20ALR%20Symposium%20FEC%20speech%20Apr.%203%202017.pdf

Smith, B. A. (2018). Campaign Finance and Free Speech: Finding the Radicalism in Citizens United v. FEC. Harv. JL & Pub. Poly, 41, 139.

Toobin, J. (2012). Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision. The New Yorker, Retrieved from https://www.newyorker.com/magazine/2012/05/21/money-unlimited on 4th May 2019.