Citizens Disclosed

In Citizens United vs. Federal Elections Commission, the Supreme Court seems to have granted big business, big union and big special interests the unbridled right to spend whatever they want to embrace political views under a notion that such entities are “people” within the meaning of the First Amendment to our Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Fourteenth Amendment carries this provision to the states as well. Thus, such companies, unions and political organizations are entitled to a right to form political action committees (PACs) to support issues and candidates without limit. As long as the candidates themselves do not seek de facto contributions through these structures, they also do not run afoul of statutory limitations imposed on campaign contributions.

Speaking before a Carter Town Hall assembly on September 14^th, former President Jimmy Carter called Citizen United, “one of the stupidest rulings ever consummated or perpetrated on the American people.” There has been massive condemnation of this ruling on the grounds that it accords rich corporate and comparable organization structures disproportionate power to peddle influence and “buy elections” that is generally unavailable to the rest of the individual electorate. And indeed, giant self-interest campaigns from pharmaceutical companies and Wall Street players have exploded the notion that somehow regulating their activities is both un-American and economically unwise, even though every cogent argument to reduce the cost of prescription drugs and prevent the Wall Street excesses that brought down the global economy supports an entire new and rigorous revamping of our relevant regulatory schema.

But wait, there is a silver lining to Citizens United that may have been overlooked by the vast majority of its critics, but which has most certainly not escaped judicial review. If those big PAC contributors think they have a constitutional right to remain anonymous, perhaps they need to think again. In John Doe vs. Sam Reed, a June 2010 Supreme Court case concerning the right of a citizen to speak anonymously concerning a local referendum (where petition signatures were sought to be kept confidential for fear of reprisals), conservative Justice Antonin Scalia (pictured above) wrote this in a concurring opinion: “And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.”

There is nothing in Citizen United that precludes a requirement of full and complete disclosure of all contributors, and indeed where there are statutory disclosure requirements, courts appear to be lining up to enforce those provisions. Indeed, the solution to the egregious impact of this Supreme Court debacle, short of reversal, may in fact be in passing legislation that mandates disclosure of the contributing parties, particularly major contributors: “It is probably true that the more important issue is not which laws have been upheld, but rather which bills were never passed. But it is also true that the Supreme Court is likely to sustain aggressive disclosure laws if they are enacted. The part of Citizens United that everyone remembers was its main ruling, allowing unlimited campaign spending by corporations and unions. The court decided that part by a 5-to-4 vote, split along the classic ideological fault line. People forget the second aspect of the decision, this one favoring disclosure and decided by a lopsided vote. Only Justice Clarence Thomas dissented…

“It is a small step from that reasoning to saying, as eight justices did, that it helps to know who is advancing the ideas you are evaluating. You probably trust some sources of information more than others, for instance, and you may examine an argument more skeptically if it happens to align with the speaker’s self-interest.

“Richard L. Hasen, an election law specialist at the University of California, Irvine, added that political science research had shown that disclosure could provide voters with useful information. ‘If all I tell you about a candidate is that he is backed by the N.R.A. or Planned Parenthood, that is all many voters need to know,’ he said. ‘The disclosure serves a shortcut function.’” New York Times, September 19^th. I will go one step further in suggesting that the mandated disclosure should require that contributors be featured no less prominently than any information contained in public advertising or publicity, that their names and organizational affiliation be clearly presented and enunciated such that a reasonable man listening to or reading such materials would be clearly and obviously informed as to the primary financial contributors that gave rise to the materials.

I’m Peter Dekom, and the sooner we take steps to mitigate the disproportionate power of special interests by adding such disclosure requirements, the better.