How the Citizens United Case Affects Money & Politics and Transparency As We Know it

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The ramifications of today’s Supreme Court decision in Citizens United v. FEC are breathtaking – opening the floodgates of political money such as we have never seen before.  If you thought Congress was ‘for sale’ to the highest bidder, you ain’t seen nothing yet. Nothing less than a fundamental rethinking of our campaign finance laws is demanded as a result of today’s decision.

But one thing becomes immediately clear: Transparency about the flow of campaign cash – online and in real time – became more important. While we do not think that transparency is a panacea for the horrific consequences of today’s decision, it is critically important as the shredded system is rebuilt.

Today’s decision underscores the necessity of creating comprehensive real-time disclosure for all election spending – across the board — from when and how often candidates, individuals and PACs report their contributions and expenditures to those involved in independent expenditures, issue ads or direct election advocacy.

Others will opine about what the Court wrote about lifting the limits and other related matters that were at the heart of this case, but we want to focus on the disclosure aspects of this case.

The Majority wrote:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests…This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

The Court goes on to note the Internet’s importance when it comes to meaningful disclosure, saying that “modern technology makes disclosures rapid and informative…A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.”

True enough, but the disclosure system they describe doesn’t yet exist. The current disclosure system is insufficiently “rapid and informative” and does not make effective use of modern technology.

As a result of this decision, there will be tidal wave of corporate campaign expenditures. The systems for disclosure will have to come into the 21st century. Everything has to be reported online. All related campaign expenditures, including the new wave of issue ads, and independent expenditures and direct electioneering must be disclosed within 24 hours, with the names and addresses of anyone who has given more than $200 in support of the ad disclosed online. In fact, there should be 24-hour online reporting of all contributions of more than $200. The quarterly reporting system now in place is outdated and ineffective—ridiculous, in a word.

There is more to this case that deserves analysis, and more will come from Sunlight. We could go on and on about how wrong-headed Justice Thomas’ no-disclosure dissent is. We need to watch out that the court doesn’t use the guise of “protecting donors from harassment” as an excuse to limit disclosure.

But in the meantime, this decision should trigger momentum toward ensuring that all election-related information is available online in real-time. Disclosure remains a crucial antiseptic to the corrupting influence of money in politics. We should ensure our system is as transparent as possible.

We’ll have more to say, later today.

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  • hola
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  • Ethan Allen

    Re: The exchange between “Midwestern Woman” and “Noah Kunin”:

    Before one is lured into responding to such transparent ad hominem partisan “talking points”, it may be the better part of discretion to simply disregard such nonsense for what it is.
    The rogue elephant in the room is that the current convoluted construction of law facilitates the creation of private shell political action entities of any political persuasion, that intentionally seek to co-opt and subvert the democratic process Constitutionally guaranteed as a liberty right of individual citizenship.
    This phenomenon is not limited to the compromising of our electoral politics, this is merely the entrance through which it gains access to the control of our social construct.
    If the exposure of this problem to sunlight is indeed the quest, then exposure must occur before the deed is done, not in hindsight. We need to take a preventative approach to this corruption of democracy, pseudo-academic post mortem pathologies will not effect a cure; pretending otherwise merely plays into the hand of the corporatist charlatans that profit from the status quo.

  • Sergei Rostov

    Ok, addressing the flaws in comments:

    1)Corporations are not citizens of the US; they are merely legal constructs, and therefore should not – and were never intended to – have the same free speech rights as citizens do.

    2)If corporate spending on elections doesn’t influence those elections, how come that 99.99% + of the time, it’s the candidate who received the most corporate money who wins? That can hardly be mere coincidence.

    3)Even if you accept the notion that corporations should be able to spend their money on elections, since their money is the result of the hard work of their employees (and arguably, the purchases of their customers), then said group (or groups) should be polled by an independent entity, and the money divided
    proportionally according to the results.

    4) The ability to have one’s speech truly and actually heard is an essential part of the process, and is dependent on, and far-more-than-directly-proportional to how much money one has. Do you really believe that a corporation’s voice should be equal to hundreds of thousands, even millions, of regular citizens like yourself?

    5) Even if citizens put all their money together, corporate money would still be TWICE that amount…not to mention that a far higher percent of corporations’ money is semi-disposable income i.e. money that can for example be spent on elections.

    6) Transparency (i.e. which corporations are buying which politicians) doesn’t really matter much if you go ahead and let them buy them…which (as we see by the above) is inevitable if you let corporations spend as much money as they want to.

    7)Consider this: when corporations spend money on elections, they are spending money you spent to buy their products, they are spending YOUR MONEY to support things you may or may not (more likely not) agree with…and they are not accountable to you unless you are a large shareholder or big client (which means you are wealthy and so its far more likely that you support them already).
    (And forget about “voting with your pocketbook”…if corporations can spend as much money as they want on elections, that leads to pro-corporate legislation and court rulings, which leads to monopolies and/or industry-insider deals, which means you have – in effect or in fact – no where else to go.)

    ‘American Daughter’:

    “Given the way that I was raised and educated, there is no amount of money or false reasoning, no level of persuasion, that could bend my ability for logical scrutiny. We should try to educate our coming generations in high levels of critical thinking and unbiased analysis of data, as well”

    (I will put aside the fact that you think corporations having more influence than people is not based on false reasoning.)

    But what if the data you have access to is only that which has been previously vetted by the corporations? Let corporations control the data with their money – something which you say is perfectly ok – and that is all will you see. You have to get your data from *somewhere*…and if your data is biased (unbeknownst to you), then your conclusions will be biased as well. As for education, if we let corporations use their vast wealth to influence elections, that will lead to a pro-corporate educational system, which will be steered away from the skill sets you describe.

    ‘Advocates for Liberty’:

    “While some speech is objectionable to some, it should not be stifled.”

    Corporations can “shout” louder than the people, so if corporations are allowed to spend their money on lections, then *in effect* the people’s free speech is being stifled. If the head of a corporation wants to speak, he can do so *as an individual* – that’s his free speech. He doesn’t get to wield his corporate wealth as a club to beat down the rights of other individuals…and further, by your own logic, all speech should be given equal footing. So even a wealthy individual should not be able to speak with any more power than the poorest individual – that’s what equality, that’s what the *United States Constitution* – is *supposed* to be all about.

    Further, if you really believe in free speech, in the First Amendment, you should support all speech equally, even the speech you don’t agree with – “I don’t agree with what you say, but I will defend to the death your right to say it”…and since your money is worth less than your life (isn’t it?) – logic dictates that the solution is for all contributions from all sources to go into a pool, to be divided equally among all qualified candidates – that way everyone’s free speech rights are supported equally, all voices are heard equally, all options have equal footing, and the *people* get to choose from them…the way it was intended. And at least this way (unlike when corporations have speech; see 7)), your speech is guaranteed to be heard.

  • The horrific consequences you speak of do include the ability of foreign counties to buy advertising and express themselves in our election process. It almost seems as though that would be a natural consequence of a worldwide economy. The real victory in this decision is that we all have a voice and the ability to express that voice. It is natural that companies, persons and countries would have a vested interest in the policies of candidates. Their free speech rights should be honored. It also helps when you know what a politician sells for and who bought him. Apparently The Service Employees International Union can buy a President for 60 million. I hear a Senator sells for 3 to 5. If any organization or individual chooses to buy advertising to remove a candidate or support one it is nothing more than an entity exercising its Constitutional rights.

  • I agree that the court’s decision will challenge the technical ingenuity, legal precision and political sufficiency of a transparency response that shows just who’s paying whom for what, and does so in time for the public to react, if it’s inclined to. See http://calaware.typepad.com/calaware_today/2010/01/but-what-if-big-collectives-had-to-give-openly.html

  • Ethan Allen

    Ellen Miller/Sunlight Foundation ET Al:

    I sincerely thank you for your succinct and timely response to this latest stone the Federal courts have placed in the barricade they have been systematically building between “we the people” and our Constitutional governance; an artifice that has been under construction for several decades.

    While it is understandable that your project is concerned with the issue of government transparency, admittedly a necessary component of any functional modern democratic republic; such transparency is limited to retrospective analysis of government decisions and behaviors that for good or ill, impact the commonweal. It is by design that no amount of such analysis can unring the proverbial bell, regardless of the volume and quality of such efforts.

    There is much talk of late of incrementalism, and the silly pretense that this is some new phenomenon to be attributed to the current purveyors of the rhetoric of change and hope currently in vogue. Are we to blindly accept that the revisionists have now become our official historians? Are the corporatists and the economic and political fundamentalists that champion private advantage over the public good the heroes of 21st century Democracy?

    Despite the unfortunate criticism of your use of the word “horrific” in saying:
    “While we do not think that transparency is a panacea for the horrific consequences of today’s decision, it is critically important as the shredded system is rebuilt.”
    there can be no reasonable doubt that this flawed and ideologically driven decision fosters intentional “horrific consequences” for the Constitutional equality and liberty interests of our citizens, through the intentional debasement of our Bill of Rights.

    As my “user” namesake, and blood ancestor, once proclaimed, “Tyranny over the institutions of mankind, is first preceded by tyranny over the mind.”

  • I’m sure that everyone is delighted that foreign companies can now play ball in our political system. The Supreme Court just globalized our elections.

    http://blog.newsweek.com/blogs/thegaggle/archive/2010/01/22/should-foreign-corporations-spend-money-on-u-s-political-candidates.aspx

    I, for one, welcome our Chinese overlords.

  • @Midwestern

    True, the Sunlight Foundation received a portion of our 2008 operating budget from the Open Society Foundation along with many other organizations representing a diverse set of values but all of whom have a firm belief in government transparency.

    Note that overwhelmingly our budget is derived from the Omidyar Network, established by Pierre Omidyar, founder of eBay – a corporation.

    So the logic espoused in your comment doesn’t exactly track.

    Furthermore, if you read our full policy position above we never take a position on whether or not corporate speech should (or should not) be protected by the First Amendment.

    If you want to critique and engage in a conversation about whether or not the corporate expenditures which are now legal should be *disclosed* to the public, that *is* a policy we have taken a position on and one we welcome conversation regarding.

  • Midwestern Woman

    Answered my own question by reading your “how we are funded”. Yes, you are funded by Soros’s Open Society foundation. ‘Nuff said.

  • Midwestern Woman

    The Supreme Court just reminded us that FREE SPEECH is the law of the land; that the First Amendment doesn’t say the government can censor speech 30 days before an election; that citizens have the right to speak up for and against candidates for office. McCain-Fiengold was an abomination supported by George Soros.

    Speaking of Soros and money, does the Sunlight Foundation get any money from George Soros? Just asking.

  • While I commend your organization’s work with respect to helping constituents stay informed through efforts like OpenCongress and ReadTheBill, I was surprised at your reaction to the SCOTUS decision.

    While some speech is objectionable to some, it should not be stifled. I find the more recent movies from Michael Moore to be ridiculous, but I would fight for his right to produce such films.

    I liked Cato’s write up of the decision: http://www.cato.org/pub_display.php?pub_id=11159.

    Keep up the work of shining the light of truth. We are smart enough to figure it all out. We are smart enough to see who is buying whom. If nothing else, I see a side effect from this being the further exposure of crony capitalism, and that’s a good thing. More freedom is a good thing.

    http://www.advocatesforliberty.com
    http://twitter.com/Advocates4LibRT
    http://www.facebook.com/pages/Advocates-for-Liberty/152239673940
    http://www.youtube.com/user/AdvocatesForLiberty

  • Interested Citizen

    Very well said, American Daughter. I could not agree more. I support the Sunlight Foundation’s work on transparency as well. However, I find the SCOTUS decision to be very encouraging. People are emphasizing big corporations with respect to this decision while forgetting that this also applies to non-profits, unions, and small businesses. I, like you, do not feel unduly influenced by an onslaught of advertising that I find is illogical or has false reasoning.

  • I sense from your use of the word “horrific” that you are disappointed by the SCOTUS decision today. That saddens me, because Sunlight Foundation and Citizens United are both advocacies that I believe in.

    Please consider this:

    We all want to prevent the hijacking of our political process by nefarious organizations with deep pockets. But the way to do that is not by restricting free speech. Such sacrifice of principle is a cop-out that relieves us of our duty to remain well informed, so that no amount of costly propaganda can sway us from the right choices.

    What we should do instead is put in place laws mandating complete and instant transparency regarding donors, recipients, and sums involved in campaign expenditures, just as you said in your post. And, as citizens, we must remain active, informed, and involved.

    Given the way that I was raised and educated, there is no amount of money or false reasoning, no level of persuasion, that could bend my ability for logical scrutiny. We should try to educate our coming generations in high levels of critical thinking and unbiased analysis of data, as well.

    Mine was a 1940s education, and I don’t think we have as good today. But that is somewhat ameliorated by the rapidity of communications and the mutual vetting of information that takes place on the internet. So I am hopeful.

    All that said, and especially in this new landscape, the tools provided by the Sunlight Foundation, Open Congress, and your many apps are outstanding, well-constructed, and extremely valuable.

  • Seth Johnson

    Any given state could devise conditions for being granted limited liability. This could clearly be set up as a distinction whereby rights of natural persons are distinct from whatever rights state-created corporate entities with limited liability privileges possess — at the state level. You can simply apply the principle of fundamental rights of natural persons on their own or within associations, while understanding associations with limited liability privileges as distinct because of those privileges.

    The federal level is a different beast. The real problem with this ruling is that it looks like a further extension of corporate rights, when actually it’s an overapplication of federal commerce clause jurisdiction, so that by upholding the rights of persons and their associations at that level, the ruling glosses over the unique powers that corporations have as compared to natural persons. Rather than clarifying that the artificial beings given limited liability by states may be distinguished from natural persons who have ordinary liability under the law, this ruling is a further gloss that leads to more misconceptions about the corporate form.