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Citizens United

Did Citizens United v. FEC pave the way for candidate Donald Trump? Legal contributor SCOTT SHAIL says free speech may be indemnified by the Constitution, but free and fair elections are the only insurers of democracy.

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It just so happens that opening arguments in the Senate impeachment trial against President Donald Trump are expected to get underway on the exact same day that, 10 years ago, the Citizens United case was decided by the Supreme Court. Coincidence? Of course. But it’s almost impossible to imagine we’d have a President Trump in the White House, and the runaway influence of billionaire donors and corporations that has surrounded his presidency — up to and including the Ukraine scandal — were it not for that horrific, fateful ruling a decade ago.

Considered one of the most important First Amendment cases decided by the Supreme Court in recent years, the 2010 landmark case Citizens United v. Federal Election Commission establishes controversial precedent that could affect local, state and federal elections for years to come.

Essentially the case stands for the proposition that the First Amendment protects campaign contributions and other forms of political spending, and, more importantly, that corporations are entitled to the same First Amendment protections enjoyed by individuals. While no one can predict what impact the decision may have on the 2012 presidential election, it may have already impacted several 2010 mid-term election races and at least one gubernatorial race.

Campaign finance regulation has been a matter of law for more than 100 years. Congress has sought to stem the influence that large corporations, unions and even wealthy individuals have on the outcome of elections with a variety of measures including, but not limited to, the Tillman Act in 1907; the Taft-Hartley Act in 1947; the Federal Election Campaign Act of 1971; and the McCain-Feingold Act of 2002. In response various parties have mounted constitutional attacks against this body of legislation with varying degrees of success.

Prior to Citizens United the Court seemed at ease with the notion that limiting the flow of money into political campaigns from corporations was consistent with the spirit and letter of the First Amendment. The Court openly aired its concerns about the potential for wielding undue influence over elected officials by those who made large monetary contributions to their campaigns. In fact a brief journey into the Court’s First Amendment jurisprudence provides ample support for the proposition that corporations are not entitled to the same protections as that of individual citizens. As a result of Citizens United that is simply no longer the case.

Large corporations, unions and even wealthy individuals influence the outcome of elections

As with any important issue, all sides of the political spectrum have opposing views regarding the potential affects that this decision may have on future elections. The majority, concurring and dissenting opinions authored by various Justices on the Court itself illuminate these views. Essentially, conservatives believe that the decision will have minimal impact on future elections, as corporations tend to evenly distribute campaign contributions between republican and democratic candidates while doing most of their political spending in the lobbying arena. Meanwhile liberals believe the case may have catastrophic affects on future elections. The fear is that corporations will have substantial influence over elected officials and will be able to directly impact elections by bombarding voters with half-truths and negative campaign advertisements against candidates that do not support their business objectives.

The decision has already had a substantial legislative impact as approximately 24 states will have to change their campaign finance laws because of the Court’s decision. In fact, Congressional democrats have already begun work on the DISCLOSE Act earlier this year, a clear attempt to limit the expansive reach of the Court’s decision and require broad disclosure with respect to corporate political contributions. While the truth probably lies somewhere in between these opposing schools of thought, Citizens United is sure to ignite fascinating debate between and political reaction by the other branches of government.

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