The freedom of speech clause of the First Amendment only says this: “Congress shall make no law…abridging the freedom of speech.” That’s it. Every Supreme Court case regarding freedom of speech in the last 200 years has relied on that one sentence to decide what the founders intended. Which, unsurprisingly, can lead to some pretty heated debates about what exactly they meant, while allowing a partisan court to make decisions based on political preferences instead of legal precedents.
Two recent court cases have relied on this ambiguity to undo years of legislation designed to curb corruption in elections. The first case is Citizens United v. Federal Election Commission. In January 2010, the Supreme Court struck down provisions of the 2002 Bipartisan Campaign Reform Act by a 5-4 decision, which prohibited corporations and unions from spending on “electioneering communications.”
Then, on March 26, 2010, the U.S. Court of Appeals for the District of Columbia Circuit made a ruling in SpeechNow.org v. Federal Election Commission. Relying on the precedent set by Citizens United, the court ruled that the Federal Election Commission could not limit contributions by individuals, corporations or unions to groups that made only independent expenditures. This led to the creation of super PACs, political action committees that can spend all their time and money attacking one candidate and supporting another. These super PACs’ expenditures are still considered independent, as long as they do not coordinate with a candidate regarding how the funding is used. In effect, it ended any regulation of campaign financing. How has this affected the 2012 presidential campaign, the first one since the court decision?
Simply put, it has allowed a tiny fraction of the population to exert a disproportionately large amount of influence over these elections. How disproportionate? Consider that 196 Americans, or 0.000063 percent of the population, have given 80 percent of the nearly $500 million spent by super PACs in this year’s campaign. That amount of money is over twice the amount spent by the parties themselves.
A counter to this argument would be that spending money on a campaign does not necessarily result in support from a candidate. But this narrow-minded view overlooks the possibility of interactions other than quid pro quo exchanges; donations buy access to candidates. This cannot be denied, and when such a small sliver of people has the money and desire to buy such access, it results in a sort of ideological funnel. In order to get the money necessary to be a mainstream candidate, one must first conform to the policy positions of the 0.000063 percent of Americans who can provide such funding. This leaves third-party candidates like Gary Johnson and Jill Stein out in the cold.
So much of this campaign has been spent discussing policies the candidates disagree about that it is easy to overlook all the issues they do agree on: continuing the war on drugs, increased defense spending and the idea that a U.S. president can murder U.S. citizens without trial, to name a few. The rulings in these cases have allowed tiny groups of people to choose whom to present to the American public as viable candidates for president, leaving many candidates without enough funding to compete. The ads run by these groups and the candidates themselves emphasize the differences between them while obscuring their numerous similarities, deceiving Americans with the illusion of a choice. Overturning these two decisions and passing legislation for campaign finance reform would help ensure that our president is chosen by all Americans who choose to vote — not just those with a sizable bank account.
A version of this article appeared in the Wednesday, Oct. 24 print edition. Ian Mark is a staff columnist. Email him at email@example.com.
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