Citizens Disunited
| Publication year | 2010 |
Georgia State University Law Review
Article 9
3-13-2012
Citizens Disunited
Steven Winter
Follow this and additional works at: http://digitalarchive.gsu.edu/gsulr Part of the Law Commons
Recommended Citation
Winter, Steven (2010) "Citizens Disunited," Georgia State University Law Review: Vol. 27: Iss. 4, Article 9. Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/9
This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.
CITIZENS DISUNITED Steven L. Winter*
Let's face it: Something is profoundly awry in our democracy. From swift-boaters to birthers; from WMDs to death panels; from anchor babies to fictitious beheadings in the Arizona desert; from Glen Beck to Newt Gingrich, our public discourse is a toxic mix of rumor, myth, half-truth, deliberate distortion, outright fabrication, guilt by loose association, and other whopping non-sequiturs. I am skeptical that any amount of campaign finance reform can repair this situation. But I am confident that to take a crude First Amendment crowbar to the only levee that keeps the surge of corporate funding from the maelstrom of modern mass media culture is to court disaster.
To think otherwise, you would have to have your head firmly ensconced in a First Amendment bubble circa 1973, when lunch counter sit-ins, civil rights marches, and anti-war demonstrations were recent, still vivid lessons in the value of free speech; when all reporters aspired to be Woodward and Bernstein; when people actually watched the CBS Evening News and Walter Cronkite was "the most trusted man in America"; and when an old-school mistrust of governmental power was made flesh in a paranoid President with an enemies list and a secret black-ops unit operating out of the White House. Like Professor Gora, I too came of age in that time, and, as I've written previously,1 the fundamental First Amendment question of that day was how far to extend the boundaries of freedom of expression. Radicals like myself thought that there should be no boundaries at all.
We live in a different time, however—one of viral emails, Fox News, Facebook and Twitter, and an ever-escalating flow of money
* Walter S. Gibbs Professor of Constitutional Law, Wayne State University Law School. Copyright 2010; all rights reserved.
1. Steven L. Winter, Fast Food and False Friends in the Shopping Mall of Ideas, 64 U. Colo. L. Rev. 965 (1993).
1134 GE ORGIA STATE UNIVERSITY LAW REVIEW [Vol. 27:4
into the political system. According to the non-partisan Center for Responsive Politics, spending on the recent midterm elections is estimated at nearly $4 billion compared to $2.85 billion for the 2006 midterm and the record $4.14 billion for the 2004 presidential campaign year. Outside spending in 2010 exceeded the previous record of $448 million set in 2004. Overall, Republican-leaning groups in this cycle outspent their Democratic counterparts by more than 2-to-1.3 And, as has been widely reported, the vast proportion of this spending has come from § 501 (c)(4) and (6) organizations that do not have to disclose their donors.4
Much of this money was well-spent: the $36 million spent by Karl Rove's two Crossroads groups in support of Republican candidates yielded a 58% success rate, while the $26 million spent by the Chamber of Commerce in support of Republicans yielded a success rate of 63%.5 These efforts were highly coordinated, with the
2. To take a high-profile example, in 2004 Don Blankenship of Massey Coal spent $3 million to support the election of a state supreme court justice who then cast the deciding vote reversing a $50 million judgment against Massey. The bulk of this money, $2.5 million, was spent entirely independently. His overall contribution was more than three times the amount spent by the candidate's entire campaign. Caperton v. A.T. Massey Coal, 129 S. Ct. 2252, 2257-58 (2009). In Citizens United v. FEC, 130 S. Ct. 876, 910 (2010), Justice Kennedy distinguished Caperton as "limited to the rule that the judge must be recused, not that the litigant's political speech could be banned." But this remarkable formalist sleight of hand fails to rebut the factual premise of the constitutionally required recusal in Caperton—that independent expenditures create an appearance of corruption. Logically, if an appearance of corruption of this sort is sufficiently strong to constitute a due process violation, then it is hard to see why it should not suffice as a compelling governmental interest justifying congressional regulation.
3. Megan R. Wilson, Who's Buying This Election? Close to Half the Money Fueling Outside Ads Comes From Undisclosed Donors, Open Secrets Blog, Nov. 2, 2010, http://www.opensecrets.org/news/2010/11/whos-buying-this-election.html; Michael Beckel & Megan R. Wilson, Election 2010 Outside Political Spending Officially Eclipses Such Expenditures From 2004 Cycle, Open Secrets Blog, Oct. 28, 2010, http://www.opensecrets.org/news/2010/10/breaking-outside-spending-this-seas.html; Election 2010 to Shatter Spending Records as Republicans Benefit from Late Cash Surge, Open Secrets Blog, Oct. 27, 2010, http://www.opensecrets.org/news/ 2010/10/election-2010-to-shatter-spending-r.html [hereinafter Shatter Spending Records]. See Editorial, Drowning in Campaign Cash, N.Y. Times, Oct. 31, 2010, at WK 7. To put it in context, the top four conservative groups spent over $100 million while the top four liberal groups spent $38.6 million, with three-quarters of that amount coming from two unions. Shatter Spending Records, supra note 3.
4. Michael Luo & Stephanie Strom, Donor Names Remain Secret As Rules Shift, N.Y. Times, Sept. 21, 2010, at A1; Shatter Spending Records, supra note 3.
5. Michael Luo & Griff Palmer, Outside Groups on the Right Flexed Muscles in House Races, N.Y. Times, Nov. 4, 2010, at P6. Some of the Chamber's money was spent on Democratic candidates. Id. According to the Center, the Chamber spent $35 million overall. See also Shatter Spending Records, supra note 3.
Republican outside groups spending heavily on behalf of candidates who were underfunded relative to their Democratic opponents. As one media analyst remarked: "Republican groups basically provided the advertising version of bridge loans for the underfunded challengers, running ads before they could go up on the air for themselves . . . ."6 Because so much of this spending was by outside groups funded by anonymous donors, there was a flood of negative ads characterized by a sharply aggressive tone and exaggerated—if not false and misleading—claims.
Though it might be too much to say that all this was wrought by the Court's decision in Citizens United, it is certainly true that it took place under its aegis. Not surprisingly, Americans overwhelmingly disapprove: in a poll just before the midterm elections, 80% of respondents said it was important to limit campaign spending (with Democrats and Independents more likely than Republicans to say it was very important) and 92% favored full disclosure.9 The experience of the recent elections and the negative reaction of the vast majority of Americans surely entitle us to ask whether the Court's ruling was either necessary to or justified by our commitments to democracy and free speech.
Plainly, the Court and its...
To continue reading
Request your trial