tag:theconversation.com,2011:/uk/topics/citizens-united-14668/articlesCitizens United – The Conversation2023-07-27T12:25:41Ztag:theconversation.com,2011:article/2074652023-07-27T12:25:41Z2023-07-27T12:25:41ZProgressives’ embrace of Disney in battle with DeSantis over LGBTQ rights comes with risks<figure><img src="https://images.theconversation.com/files/537918/original/file-20230717-248134-k6gf9e.jpg?ixlib=rb-1.1.0&rect=198%2C34%2C5550%2C3792&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is Disney really a 'woke' corporation? </span> <span class="attribution"><span class="source">AP Photo/Phelan M. Ebenhack</span></span></figcaption></figure><p>The battle between The Walt Disney Co. and Florida Gov. Ron DeSantis over LGBTQ rights and whether those rights should be acknowledged – let alone taught – in schools has spurred an unlikely alliance between progressives and one of the world’s biggest entertainment companies.</p>
<p>Progressive groups such as <a href="https://www.hrc.org/press-releases/human-rights-campaign-responds-to-governor-desantis-revoking-disneys-tax-exempt-status">The Human Rights Campaign</a> have welcomed Disney to their cause, while progressive columnists at <a href="https://www.thedailybeast.com/disneys-going-to-school-ron-desantis-about-free-speech">The Daily Beast</a> and <a href="https://www.msnbc.com/opinion/msnbc-opinion/desantis-disney-first-amendment-rights-unconstitutional-rcna81974">MSNBC</a> have cheered Disney’s recent lawsuit against DeSantis. The suit, <a href="https://apnews.com/article/desantis-disney-president-theme-park-takeover-99615be881a55d559f7543b2dc2e9dea">filed in April 2023</a>, alleges that DeSantis <a href="https://www.washingtonpost.com/business/2023/04/26/desantis-disney-lawsuit/">violated the company’s free speech rights</a> by retaliating against Disney for <a href="https://apnews.com/article/bob-chapek-ron-desantis-china-florida-arts-and-entertainment-26579ee78b3d48fb997ddfba025cf822">opposing a Florida education law</a> that would prevent teachers from instructing early grades on LGBTQ issues.</p>
<p>DeSantis <a href="https://www.usatoday.com/story/opinion/2023/05/05/desantis-disney-fight-woke-corporations-political-pr-stunt/70178803007/">has decried Disney</a> as a “woke” company and sought to punish the media conglomerate by <a href="https://www.politico.com/news/2022/04/22/desantis-disney-special-status-dont-say-gay-00027302">stripping the company of its powers</a> to control development in and around Disney World in Orlando.</p>
<p>While joining forces with corporations to achieve political ends can be advantageous, given their tremendous resources, it also poses risks for progressives, who may suffer setbacks when their principles no longer align with corporate profits. Just look at how quickly <a href="https://www.nytimes.com/2023/04/25/business/bud-light-dylan-mulvaney.html">Bud Light backed away</a> from a transgender social media influencer promoting the beer when conservatives threatened boycotts and sales slipped. Before the backlash, a top marketing executive had said the brand <a href="https://www.nytimes.com/article/bud-light-boycott.html">needed to become more inclusive</a>; afterward Bud Light said it would focus marketing on sports and music.</p>
<p>I am a <a href="https://clas.iusb.edu/political-science/faculty/steven.html">professor of political science</a> who studies corporate political rights and <a href="https://scholar.google.com/citations?hl=en&user=0RflZR8AAAAJ&view_op=list_works&sortby=pubdate">the role corporations play in the public square</a>. Disney v. DeSantis raises questions of how advocates of free speech and democracy should approach a situation when a corporation joins their side.</p>
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<h2>Power to persuade</h2>
<p>Business interests have long tried to influence public policy, even before the landmark Supreme Court decision <a href="https://www.fec.gov/legal-resources/court-cases/citizens-united-v-fec/">Citizens United v. FEC</a> lifted restrictions on corporate spending on elections. Corporations spend <a href="https://www.opensecrets.org/news/2023/01/federal-lobbying-spending-reaches-4-1-billion-in-2022-the-highest-since-2010/#:%7E:text=Federal%20lobbying%20spending%20reaches%20%244.1%20billion%20in%202022%20%E2%80%94%20the%20highest%20since%202010,-By%20Taylor%20Giorno">billions of dollars each year</a> to lobby Congress and <a href="https://www.opensecrets.org/news/reports/layers-of-lobbying">billions more lobbying state legislators</a>. They <a href="https://www.nytimes.com/2016/08/08/us/politics/think-tanks-research-and-corporate-lobbying.html">finance think tanks and foundations</a> that promote their views and interests. They place “advertorials” in local newspapers’ op-ed pages.</p>
<p>Citizens United, decided in 2010, cemented corporations’ right to participate in politics. The high court ruled that <a href="https://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/">political spending amounts to protected speech</a>, and governments cannot infringe on corporations’ right to free speech by limiting the money companies can spend to influence voters through advertising and other means.</p>
<p>Progressives have <a href="https://www.brennancenter.org/issues/reform-money-politics/campaign-finance-courts/citizens-united">blasted the decision</a> for unleashing torrents of corporate cash that they say is corrupting the political system.</p>
<p>Ironically – at least for progressives – Disney’s lawsuit against DeSantis is based in part on the <a href="https://www.brennancenter.org/our-work/research-reports/citizens-united-explained">Citizens United Supreme Court ruling</a> and the free speech rights it established for corporations. In the statement that caused trouble with DeSantis, Disney <a href="https://www.cnbc.com/2022/03/28/disney-vows-to-help-repeal-dont-say-gay-law.html">showed itself a reasonable partner</a> for advocates of LGBTQ rights.</p>
<p>The statement went beyond just criticizing the legislation. Disney vowed to help overturn the law, which critics derided as “Don’t say gay.”</p>
<p>“Our goal as a company is for this law to be repealed by the legislature or struck down in the courts,” the company <a href="https://thewaltdisneycompany.com/statement-from-the-walt-disney-company-on-signing-of-florida-legislation/">said in the statement</a>. “We remain committed to supporting the national and state organizations working to achieve that.”</p>
<p>Disney has since demonstrated its willingness to use its resources and power to take on DeSantis over the issue of LGBTQ rights, including filing the lawsuit, which centers on Disney’s advocacy against the Florida law. In May, Disney <a href="https://www.nytimes.com/2023/05/18/business/disney-ron-desantis-florida.html">canceled a US$1 billion office project</a> in Orlando that would have brought an estimated 2,000 jobs to Florida.</p>
<p>These actions show the extraordinary resources that corporations can bring to bear in support of political causes, and progressives have welcomed these resources in advancing their issues. For example, many progressives supported Major League Baseball when it moved <a href="https://www.reuters.com/article/us-usa-georgia-voting-companies-idUSKBN2BN1M9">its 2021 All-Star Game from Atlanta</a> to protest Georgia’s restrictive voting laws and lauded two Atlanta-based companies, Coca-Cola and Delta Air Lines, for their support of MLB.</p>
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<img alt="a man wearing a rainbow flag cape holds a pro-trans sign in front of a mickey logo" src="https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Before coming out against DeSantis’ bill, Disney stayed quiet, which prompted some employees to stage a protest in early 2022.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXDisneyWalkout/3ca1bc6c33c243f5aca44e293bd324c4/photo?Query=disney%20lgbtq&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=16&currentItemNo=6">AP Photo/Phelan M. Ebenhack</a></span>
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<h2>Politics and profits</h2>
<p>But progressives’ efforts to harness the powers of global companies come with risks. </p>
<p>Corporations’ loyalties tend to <a href="https://www.marketplace.org/2022/04/25/how-shareholders-jumped-to-first-in-line-for-profits-rerun/">lie with profits and shareholders</a>, and the political principles that companies embrace may get quickly discarded when profits are threatened. The <a href="https://www.reuters.com/business/sustainable-business/vanguard-quits-net-zero-climate-alliance-2022-12-07/">Vanguard Group’s retreat from the Net Zero Asset Managers initiative</a> to reduce carbon emissions when it felt pressure from investors reveals this vulnerability.</p>
<p>Political alliances, of course, can shift as circumstances change. Sen. Lindsey Graham, Republican of South Carolina, branded candidate Donald Trump as a <a href="https://www.youtube.com/watch?v=2bkDykGhM8c">“race-baiting, xenophobic, religious bigot”</a> in 2015 but became one of the former president’s <a href="https://www.nytimes.com/2019/02/25/magazine/lindsey-graham-what-happened-trump.html">staunchest supporters following Trump’s election</a> in 2016.</p>
<p>Corporations are not unlike other players in the political sphere. As the previous examples show, most groups or people – whether businesses, advocates or political leaders – will pursue their own interests and adjust their positions to achieve them.</p>
<p>But because corporations are market-oriented, they can be even more inconsistent allies than is usually the case with politicians, parties and interest groups. </p>
<p>Target Corp., for example, <a href="https://www.nytimes.com/2023/05/25/business/target-pride-lgbtq-companies-backlash.html">altered some displays and merchandise</a> promoting Pride month – the annual celebration of the LGBTQ community – after a backlash from some customers. </p>
<p>The graver danger comes if corporations take actions or positions inimical to those of their allies and turn corporate power and resources to positions contrary to the groups with which they are momentarily aligned. Thus, conservatives were staggered to learn that Chick-fil-A, a reliable supporter of conservative causes, <a href="https://thehill.com/homenews/4026001-chick-fil-a-dei-hire-sparks-calls-for-boycott/">hired a vice president of diversity, equity and inclusion</a>. They even threatened to boycott the fast-food restaurant chain. </p>
<p>Progressives would be naive to reject the power and influence of corporations when their interests intersect, as they have in Disney v. DeSantis. They would be just as naive to assume that corporations would consistently support a cause or treat employees, customers or the communities in which they operate with fairness because of laudable positions on public policies.</p>
<p>Corporate interests – including profits, share prices, customer bases and employee relations – are the primary drivers of business decisions, not a commitment to the range of progressive issues from racial diversity to LGBTQ rights to climate change that critics deride as “<a href="https://www.nytimes.com/2023/03/24/upshot/woke-meaning-democrats-republicans.html">wokeness</a>.” So, while DeSantis and other conservatives may sound alarms about Disney and <a href="https://www.nbcnews.com/politics/2022-election/disney-desantis-finds-corporate-foil-rcna22545">the rise of the “woke” corporation</a>, in reality there may be no such thing.</p><img src="https://counter.theconversation.com/content/207465/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Gerencser does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Progressives have cheered Disney in its battle with Florida Gov. Ron DeSantis over LGBTQ rights. But joining forces with corporations poses risks when principles no longer align with profits.Steven Gerencser, Professor of Political Science, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1927042022-10-20T13:14:12Z2022-10-20T13:14:12ZCorporate spending in state politics and elections can affect everything from your wallet to your health<figure><img src="https://images.theconversation.com/files/490190/original/file-20221017-7289-9wr57o.jpeg?ixlib=rb-1.1.0&rect=0%2C4%2C2916%2C2004&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">From Alaska to Alabama, corporations spend money to shape their local business environments, resources and regulations. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/campaign-donations-royalty-free-image/1398882607?phrase=political%20donations&adppopup=true">Douglas Rissing/ iStock / Getty Images Plus</a></span></figcaption></figure><p>Political spending by corporations is big business. </p>
<p>As one corporate executive with experience in business-government relations says, “A company that is dependent on government that does not donate to politicians is engaging in corporate malpractice.” </p>
<p>Our research group heard that statement during a series of interviews with industry insiders that we conducted for <a href="https://journals.aom.org/doi/abs/10.5465/amj.2017.1258">a study on corporate political strategy and involvement</a> in U.S. state politics. </p>
<p>In the 2020 election cycle, private interests spent <a href="https://www.opensecrets.org/political-action-committees-pacs/2022">US$486 million on campaign contributions</a> to U.S. federal election candidates and over <a href="https://www.opensecrets.org/federal-lobbying">$7 billion</a> to lobby Congress and federal agencies.</p>
<p>The 2022 cycle could be a record period if recent trends are any indication. At the federal level, <a href="https://www.opensecrets.org/news/2020/12/most-expensive-races-of-all-time-senate2020/">nine of the 10 most expensive Senate races to date happened during the 2020 election cycle</a>. Notably, Georgia was home to the <a href="https://www.opensecrets.org/news/2021/01/georgia-senate-races-shatter-records/">two most expensive Senate contests of all time in 2020</a>, with candidates and outside groups spending over $800 million on the two races combined.</p>
<p>Data from campaign finance monitor the <a href="https://www.opensecrets.org/federal-lobbying/top-spenders">Center for Responsive Politics</a> shows that those companies most affected by government regulation spend more. The operations of Facebook owner Meta, for example, could be heavily affected by government legislation, whether from laws concerning <a href="https://www.bbc.com/news/technology-42096185">net neutrality</a>, <a href="https://gdpr.eu/the-gdpr-meets-its-first-challenge-facebook/">data privacy</a> or <a href="https://www.abajournal.com/magazine/article/social-clashes-digital-free-speech">censorship</a>. Meta spent nearly $7.8 million in contributions and $36.4 million in lobbying <a href="https://www.opensecrets.org/orgs/summary?toprecipcycle=2020&contribcycle=2020&lobcycle=2020&outspendcycle=2020&id=D000033563&topnumcycle=2020">during the 2020 cycle</a>. </p>
<p>This kind of political spending is also common across state governments. From Alaska to Alabama, <a href="https://www.followthemoney.org/">corporations spend huge sums of money</a> to influence policymaking because they depend on their local business environments, resources and regulations. </p>
<p>Contributions to gubernatorial and state legislative candidates <a href="https://www.followthemoney.org/research/institute-reports/joint-report-reveals-record-donations-in-2020-state-and-federal-races">set records during the 2020 cycle</a>, nearing $1.9 billion. That was up from $1.57 billion during the 2016 cycle and $1.4 billion during the 2012 cycle. Contributions in the 2020 cycle represented a nearly 21% increase from 2016. Both major political parties tend to receive roughly the same level of contributions, though the numbers can vary from year to year.</p>
<p>As the next election approaches, corporate involvement in state politics is vital to understand. </p>
<p>Companies’ attempts to manage state regulations have important effects on their operations directly as well as on state revenues and on the lives of state residents. Corporations can affect <a href="https://academic.oup.com/sf/article-abstract/90/3/947/2235830">the air that you breathe, the water you drink</a> and <a href="https://apnews.com/bd8a878c5fe84ea48ffbcf05b4edba0e">the taxes you pay</a>. </p>
<h2>External forces spark donations</h2>
<p>A <a href="https://journals.aom.org/doi/abs/10.5465/amj.2017.1258">study we conducted</a> with colleagues <a href="https://robins.richmond.edu/faculty/asutton/">Trey Sutton</a> and <a href="https://business.fsu.edu/person/bruce-lamont">Bruce Lamont</a> provides insight into the details of when and why corporations contribute to state gubernatorial and legislative candidates. </p>
<p>We examined political contributions by publicly traded companies in elections for governor and the legislature across the 50 U.S. states. The companies we studied (e.g., ExxonMobil and 3M) all operate in environmentally intensive industries – oil and gas, chemical, energy and manufacturing industries. Specifically, the companies in these industries have industrial manufacturing processes <a href="https://www.forbes.com/sites/christopherhelman/2013/06/10/americas-20-worst-corporate-air-polluters/#403cf82d41c6">that create toxic releases</a>. </p>
<p>We also interviewed industry insiders, political affairs consultants and lobbyists to complement our empirical findings. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=374&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=374&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=374&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=470&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=470&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343567/original/file-20200623-188882-1tzlhzd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=470&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">ExxonMobil is one of many companies that will likely spend a lot of money on upcoming elections.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/anastasia-hinchsliff-fuels-her-suv-at-an-exxon-mobile-gas-news-photo/103157613?adppopup=true">John Gress/Getty Images</a></span>
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<p>At the core, companies spend when they are dependent on states, meaning that they have vested interests and operations in a state that are subject to regulation. Regulation creates uncertainty for managers – which they don’t like. Spending helps alleviate the uncertainty by influencing what regulation may be imposed. </p>
<p>Our study went beyond this observation, and had four major insights:</p>
<p><strong>1. Corporations spend when they are worried about negative media coverage prompting what they perceive to be potentially harmful regulations.</strong></p>
<p>As one executive told us, “We spend a lot of time tracking media and local advocacy groups. We track [them] on a daily basis, and I get a report each week.” </p>
<p>Media coverage can drive public perceptions of corporations and influence politicians’ views. In particular, media coverage can amplify misdeeds of companies across states, which worries managers who do not want to see new regulations. In line with this, we found that the companies spent 70% more in states they operated in when national media coverage was more negative rather than less negative. </p>
<p>We found that this effect was exclusive to national media coverage as opposed to local media coverage. Specifically, when local media coverage was more negative, it did not appear to affect political spending. </p>
<p><strong>2. Corporations spend when there are powerful social movement organizations – for example, environmental protection groups – within a state.</strong></p>
<p>“Public relations firms are routinely engaged to monitor activists and the media, because if you don’t watch them, they can create regulatory change. You have to get ahead of it,” an executive said. </p>
<p>Social movement organizations (e.g., Sierra Club and the Rainforest Action Network) help <a href="https://www.jstor.org/stable/3312913?casa_token=5XA3RUoopBYAAAAA%3Agc06Z6cwRA6ODbgPUOkHwk2Ea7XB43KocZhFtMZjaTyH0UlKbOim5uAZS9QniQ1k9hXjtwGYyCEbovm__npFAuKOb467j57cqa12omJC4o1tzHJrUl--&seq=1#metadata_info_tab_contents">shape public opinion on important issues, pursue institutional change and can prompt legal reform</a> as well, which is a concern to corporations. Our research indicated that in states where they had operations, companies spent 102% more when facing greater opposition from social movement organizations than they would have on average. </p>
<p><strong>3. Corporations spend to gain a seat at the legislative table to communicate their interests.</strong></p>
<p>A political affairs consultant and lobbyist said, “Regulations are a negotiation, there is not a logic, no rule of law, lobbyists come in here…” In essence, legislators rely on policy experts and analysts, among others, when crafting new legislation, but often, solutions can be unclear with competing demands and interests. </p>
<p>Our interviewees shared with us that companies spread their contributions around to those politicians who they believe will listen to their causes and concerns – regardless of party. </p>
<p>They described themselves as wanting their voices heard on particular issues and as important players in the states in which they operate due to the employment and tax base they bring to states. </p>
<p>Boeing, for example, was the <a href="https://www.bizjournals.com/seattle/news/2021/10/06/amazon-microsoft-boeing-largest-employers.html">largest private employer in Washington state for decades</a> and has been able to <a href="https://www.reuters.com/article/us-boeing-incentives/boeing-lobby-group-team-up-to-defend-8-7-billion-in-state-tax-breaks-idUSKBN14U23V">secure tax breaks</a> as a result. This is despite <a href="https://www.seattletimes.com/seattle-news/environment/boeing-discharge-to-duwamish-violates-pcb-standards/">documented environmental problems that Boeing’s operations have had in the state.</a> </p>
<p><strong>4. Corporations spend because they see it as <a href="https://www.businessroundtable.org/about-us">consistent with their responsibility to stakeholders</a>.</strong> </p>
<p>“Companies mostly want certainty, they want to know the bottom line, and engagement can create opportunities,” said one political affairs consultant. </p>
<p>Corporations have a legal and ethical responsibility to their stakeholders. Company leaders often believe they are upholding their responsibilities to shareholders, employees, communities, customers and suppliers by participating in the political process. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343565/original/file-20200623-188936-v56a1n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">California lawmakers often set more stringent environmental policies than most other states.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/state-capitol-building-sacramento-california-news-photo/661870070?adppopup=true">Education Images/Universal Images Group via Getty Images</a></span>
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</figure>
<h2>What are the stakes?</h2>
<p>There can be huge repercussions for companies in state regulation. As one political affairs consultant told us, “[Regulation] is the pot at the end of the rainbow that could create endless possibilities of profit. It’s the only thing that stands between them and unending profits …” </p>
<p>Ride hailing service Uber, for example, mounted <a href="https://www.theregreview.org/2018/06/28/schriever-uber-lyft-lobby-deregulation-preemption/">protracted political campaigns</a> aimed at state legislatures and local governments to protect the company’s interests. One result: The ride hailing service has been able to get independent contractor status for their drivers in many states, which means the company does not have to provide unemployment insurance, workers’ compensation and other benefits. </p>
<p>Passage of regulations in large states like California, for example, can have nearly as much impact as a national regulation, making their passage far more significant for companies working nationally. </p>
<p>Since California sets more <a href="https://theconversation.com/why-california-gets-to-write-its-own-auto-emissions-standards-5-questions-answered-94379">stringent emissions standards</a> for vehicles than most other states, manufacturers designing cars for the U.S. market must make sure their vehicles can pass these standards. In this way, California and other states <a href="https://www.latimes.com/politics/story/2020-06-22/nevada-will-adopt-californias-car-pollution-standards">following its lead</a> pose a larger regulatory hurdle for auto manufacturers. </p>
<h2>Where does this leave us?</h2>
<p>Corporate involvement in state politics is an important phenomenon. Corporations provide needed products and services, and also bring jobs and increased investment to states, which can strengthen communities and state economies. Their operations also can bring health and environmental problems for state residents.</p>
<p><a href="https://fivethirtyeight.com/features/where-are-georgias-senate-candidates-getting-all-that-cash-from/">As the 2020 Georgia U.S. Senate races suggest</a>, campaign donations for candidates for federal office increasingly come from outside the state. <a href="https://www.followthemoney.org/research/institute-reports/joint-report-reveals-record-donations-in-2020-state-and-federal-races">While this pattern does not pervade state elections yet</a>, it raises questions about politicians’ responsiveness to the issues most relevant to their local constituencies.</p>
<p>Given the changed business landscape – <a href="https://www.wsj.com/articles/how-much-covid-19-cost-those-businesses-that-stayed-open-11592910575">and increased operating costs</a> – caused by the coronavirus pandemic, we expect that businesses across the country will continue to be interested in influencing policies ranging from workplace safety to local and state tax breaks. This interest will likely translate into significant spending in the upcoming election, to both major parties and their candidates.</p>
<p>And that political spending will affect everything from your wallet to your health.</p>
<p><em>This is an updated version of a <a href="https://theconversation.com/money-talks-big-business-political-strategy-and-corporate-involvement-in-us-state-politics-140686">story originally published on June 29, 2020</a>.</em></p><img src="https://counter.theconversation.com/content/192704/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Businesses can spend huge amounts of money to influence Congress. But sizable lobbyist and campaign donations also go to state campaigns and lawmakers to influence policymaking.Richard A. Devine, Assistant Professor of Management, DePaul UniversityR. Michael Holmes Jr., Jim Moran Professor of Strategic Management, Florida State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1858312022-06-28T11:59:31Z2022-06-28T11:59:31ZDonating to help women get abortions is a First Amendment right – protected by Supreme Court precedents<figure><img src="https://images.theconversation.com/files/471171/original/file-20220627-14-u9q29q.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5463%2C3628&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An abortion provider in San Antonio had to turn patients away after the June 24, 2022, Supreme Court ruling. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/dr-alan-braid-right-and-his-staff-are-stunned-as-just-news-photo/1241513732?adppopup=true">Gina Ferazzi/Los Angeles Times via Getty Images</a></span></figcaption></figure><p>Several Texas <a href="https://theconversation.com/abortion-funds-are-in-the-spotlight-with-the-end-of-roe-v-wade-3-findings-about-what-they-do-182636">abortion funds</a> – which are charities that help people who can’t afford to get an abortion pay for their travel, lodging and medical bills – paused disbursements on June 24, 2022, after the <a href="https://theconversation.com/roe-overturned-what-you-need-to-know-about-the-supreme-court-abortion-decision-184692">Supreme Court ruled</a> that Americans have no constitutional right to the procedure.</p>
<p><a href="https://www.houstonchronicle.com/news/houston-texas/houston/article/Texas-groups-pause-funding-to-aid-abortions-as-17264441.php">The Lilith, Equal Access, Frontera</a> and other funds said they were taking this step to assess the legal consequences of the court’s ruling in Texas, which already had some of the nation’s strictest abortion laws. Abortion funds in some other states, including Oklahoma, were also reportedly <a href="https://www.nytimes.com/2022/06/24/us/abortion-funds-donations-roe.html">halting their work</a>.</p>
<p>Some funds active in Texas made this decision based on concerns that their financial assistance to women seeking abortions may now be illegal in that state, as well as fears that their donors could also be sued for violating Texas law. </p>
<p>But as an <a href="https://works.bepress.com/lucinda-m-finley/">expert on reproductive rights and First Amendment law</a> who has <a href="https://www.oyez.org/advocates/lucinda_m_finley">argued before the Supreme Court</a>, I believe that donating to abortion funds – even in places where helping people get abortions is illegal – is protected by the U.S. Constitution.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1540361474375311364"}"></div></p>
<h2>Precedent in Schaumburg, Illinois</h2>
<p>The Supreme Court has ruled on several occasions that fundraising, whether it’s by charitable organizations or political candidates, is a form of speech protected by the First Amendment.</p>
<p>The court handed down the first relevant ruling in 1980, with its <a href="https://www.oyez.org/cases/1979/78-1335">Schaumburg v. Citizens for a Better Environment</a> decision. The court struck down an Illinois city ordinance that had prohibited charitable organizations from soliciting contributions unless 75% or more of their revenue was used directly for charitable purposes, rather than for salaries, administration and overhead costs.</p>
<p>The city of Schaumburg had defended that ordinance by contending it regulated conduct involving commercial transactions and was necessary to prevent fundraising for fraudulent causes. The Supreme Court rejected this characterization, asserting that fundraising is a form of protected speech because it is “intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues.”</p>
<p>The court further noted that without the right to seek and receive donations, “the flow of information and advocacy would likely cease.”</p>
<h2>Campaign contributions as free speech</h2>
<p>Several campaign finance rulings have reinforced the Schaumberg ruling.</p>
<p>The best-known among them is <a href="https://www.oyez.org/cases/2008/08-205">Citizen’s United v. Federal Election Commission</a>. Two other key rulings are <a href="https://www.oyez.org/cases/1975/75-436">Buckley v. Valeo</a>, which preceded the Schaumberg case, and <a href="https://www.oyez.org/cases/2013/12-536">McCutcheon v. Federal Election Commission</a>. All three established that contributions to political candidates, and spending by those candidates, is a form of speech protected by the First Amendment.</p>
<p>In the eyes of the law, seeking donations and making contributions are two sides of the same coin. The Supreme Court has said that both are important ways to show support for political preferences, advance ideas and advocate for policy changes.</p>
<p>The First Amendment right to solicit or give funds is not limited to charitable organizations or candidates. Simply <a href="https://columbialawreview.org/content/panhandling-regulation-after-reed-v-town-of-gilbert/">panhandling on the street</a>, the most basic form of soliciting funds, is <a href="https://casetext.com/case/loper-v-new-york-city-police-dept">entitled to First Amendment protection</a>, according to several lower federal courts.</p>
<h2>The right to donate – to controversial causes</h2>
<p>The Supreme Court has also held that the <a href="https://www.mtsu.edu/first-amendment/article/1594/freedom-of-association">freedom of association principle</a> embodied in the First Amendment protects the right to support a cause by making donations or paying dues.</p>
<p>Based on the freedom of association, which includes the right to join together with others for social or political purposes, the court has been very protective of the right of donors to remain anonymous. That has especially been the case for donors who support controversial causes and when revealing their identity might subject them to harassment, threats, public hostility or other forms of reprisal.</p>
<p>In 1958, the Supreme Court ruled in <a href="https://www.oyez.org/cases/1957/91">NAACP v. Alabama</a> that the First Amendment barred Alabama from forcing the NAACP to disclose the names of its members or donors who resided in the state. The court pragmatically recognized that compelling disclosure of supporters of a civil rights group in Alabama in the 1950s could endanger the donors. </p>
<h2>Protecting both sides</h2>
<p>This First Amendment principle of protecting the speech and the rights of donors to fund charitable causes guards both sides of the political spectrum.</p>
<p>In July 2021, for example, the Supreme Court decided a case brought by two organizations considered to be conservative: the Americans for Prosperity Foundation and the Thomas More Law Center. The two organizations challenged a California law that required them to disclose the names of their donors who gave more than $5,000.</p>
<p>California tried to justify this law as necessary to prevent fraud by registered charities – the same “preventing fraud” rationale that Schaumburg had unsuccessfully asserted as the reason it needed to restrict charitable solicitation.</p>
<p>Relying on the NAACP case among others, the Court held in <a href="https://www.oyez.org/cases/2020/19-251">Americans for Prosperity Foundation v. Bonta</a> that the compelled disclosure requirement violated the <a href="https://theconversation.com/supreme-court-strikes-down-californias-nonprofit-donor-disclosure-requirements-4-questions-answered-135174">donors’ right to freedom of association</a>.</p>
<p>Based on this body of law, the First Amendment protects the right of abortion funds to seek contributions and to make contributions to individuals in Texas and other states where abortion is illegal to support their activities. The First Amendment also protects the right of people to make donations to abortion funds.</p>
<h2>Restricting financial help for abortions in Texas</h2>
<p>A 2021 Texas law known as <a href="https://legiscan.com/TX/text/SB8/id/2395961">Senate Bill 8</a> prohibits “aiding and abetting” an abortion after six weeks into pregnancy. The measure specifically mentions providing financial assistance as a form of aiding and abetting.</p>
<p>The law authorizes any person in the world to bring a civil damages lawsuit against anyone who “aids and abets” an abortion, and to recover attorneys’ fees in addition to <a href="https://www.houstonpublicmedia.org/articles/news/texas/2022/06/24/427684/texas-trigger-law-to-ban-abortion-will-soon-go-into-effect-heres-how-it-works/">at least $10,000</a>. </p>
<p>One reason why abortion funds might be leery right now is that Texas law permits someone to seek a court order to force others to hand over information that might <a href="https://casetext.com/rule/texas-court-rules/texas-rules-of-civil-procedure/part-ii-rules-of-practice-in-district-and-county-courts/section-9-evidence-and-discovery/discovery/rule-202-depositions-before-suit-or-to-investigate-claims">provide a basis for suing them</a>.</p>
<p><a href="https://www.texastribune.org/2022/02/23/texas-abortion-sb8-lawsuits/">Two individuals have already sought such an order</a> to require the Lilith Fund to disclose information about its funding and donors in order to determine if they violated the 2021 restriction on “aiding and abetting” an abortion by giving money.</p>
<p>The <a href="https://twitter.com/ThomasMoreSoc/status/1495922599704121352?s=20&t=C7ocdHi44jdzqfe1fte9hw">Thomas More Law Society</a> – the same organization that successfully asked the Supreme Court to protect it from having to disclose its donors – is representing the people seeking donor information from the Lilith Fund, and tweeted that Lilith Fund donors could face legal action for violating the Texas abortion law’s aiding and abetting prohibition. </p>
<p>A Texas trial court judge has found that the provisions authorizing anyone to sue someone who provides or “aids and abets” an abortion <a href="https://www.texastribune.org/2021/12/09/texas-abortion-law/">likely violate the Texas Constitution</a>, and has temporarily enjoined the law, meaning that it is on hold pending appeal.</p>
<p>The case is likely to go to the Texas Supreme Court. How that court rules will have a great impact on the liability risk faced by the Lilith Fund for providing financial assistance to women to help them get an abortion. While the legal process is playing out, the Lilith Fund is trying to minimize its legal risk by suspending the distribution of money to women.</p>
<p>If the Texas appellate courts eventually uphold S.B.8, the ban on providing financial assistance to Texas women could be enforced. In that event, the Lilith Fund would be able to make a strong case that they don’t need to reveal any information because of First Amendment protections.</p>
<h2>The right to disburse money</h2>
<p>If states try to punish abortion funds – or individuals – for providing a woman with financial assistance to get an abortion in another state where it remains legal, including the money required to travel there, that would likely violate the Constitution.</p>
<p>Giving money to people who want to obtain a legal abortion would not be “aiding and abetting” a crime. Moreover, the Constitution protects the <a href="https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/interstate-travel">right to interstate travel</a>. The freedom to cross state lines is a right deeply embedded in U.S. history dating to the Articles of Confederation, prior to the Bill of Rights.</p>
<p>Assisting someone with obtaining a legal abortion by giving them money also could be protected as a form of free speech because it can be one aspect of advocating for and supporting the right to legal abortion. Disbursing these funds could also be protected under the Constitution as an aspect of the freedom to associate with women who seek legal abortions – by giving them financial support.</p><img src="https://counter.theconversation.com/content/185831/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lucinda M. Finley does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Even in states that ban abortion, legal precedents indicate that donating to, and receiving assistance from, abortion funds is an expression of free speech.Lucinda M. Finley, Professor of Law and Director of Appellate Advocacy, University at BuffaloLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1351742021-07-01T22:39:29Z2021-07-01T22:39:29ZSupreme Court strikes down California’s nonprofit donor disclosure requirements: 4 questions answered<figure><img src="https://images.theconversation.com/files/407510/original/file-20210621-35539-p4i6th.jpg?ixlib=rb-1.1.0&rect=0%2C179%2C4602%2C2583&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Who's giving to whom just became less transparent.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/give-and-take-royalty-free-image/464998367">crazydiva/iStock via Getty Images Plus</a></span></figcaption></figure><p><em>The Supreme Court <a href="https://www.supremecourt.gov/opinions/20pdf/19-251_p86b.pdf">tossed out a California law</a> requiring nonprofits to report their major donors to state officials. In a 6-3 ruling, the court said the law, intended to fight fraud, subjected donors to potential harassment and violated their First Amendment rights. Dana Brakman Reiser, a legal scholar on nonprofits, explains the case, known as <a href="https://www.oyez.org/cases/2020/19-251">Americans for Prosperity v. Bonta</a>, and the significance of the court’s decision.</em></p>
<h2>1. What was the case about?</h2>
<p>Two <a href="https://www.theguardian.com/us-news/2018/sep/26/koch-brothers-americans-for-prosperity-rightwing-political-group">conservative nonprofit groups</a>, <a href="https://americansforprosperity.org/civil-liberties-make-progress-possible/">Americans for Prosperity Foundation</a> and the <a href="https://www.thomasmore.org/about-the-thomas-more-law-center/">Thomas More Law Center</a>, sued California’s government over its requirement that the identity of a charity’s biggest donors be <a href="https://oag.ca.gov/charities/renewals">shared with the state’s attorney general</a>. </p>
<p>Though the disclosure is made to the state, not the public, <a href="https://www.supremecourt.gov/DocketPDF/19/19-251/169507/20210222113359763_19-251ts.pdf">both</a> <a href="https://www.supremecourt.gov/DocketPDF/19/19-251/169531/20210222131516000_19-255%20Brief%20for%20Petitioner.pdf">groups</a> claimed that California failed to sufficiently safeguard the names of donors, <a href="https://www.courthousenews.com/high-court-skeptical-of-california-donor-disclosure-law/">resulting in numerous data leaks</a>. The litigants argued that given the potential of disclosure by California’s authorities, donors who support controversial charities could reasonably fear harassment if the public learned their identities. </p>
<p>On those grounds, Americans for Prosperity Foundation and the Thomas More Law Center accused the state of hindering their constitutionally guaranteed <a href="https://www.mtsu.edu/first-amendment/article/1594/freedom-of-association">freedom of association</a>. A <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/19-251.html">diverse array of nonprofits</a>, including the American Civil Liberties Union and the NAACP Legal Defense Fund, agreed and urged the court to block California’s disclosure rule.</p>
<p>California countered by arguing that donor information is necessary to <a href="https://www.supremecourt.gov/DocketPDF/19/19-251/172982/20210325141442657_19%20251%2019%20255%20Brief%20on%20the%20Merits.pdf">combat charity fraud</a> and that, especially after adjustments made during the litigation, donor names <a href="https://www.supremecourt.gov/DocketPDF/19/19-251/172982/20210325141442657_19%20251%2019%20255%20Brief%20on%20the%20Merits.pdf">submitted to the state are now secure</a>. The <a href="https://www.supremecourt.gov/DocketPDF/19/19-251/170618/20210301204917004_AFPF%20030121.7.pdf">United States</a> and a group of prominent <a href="https://www.supremecourt.gov/DocketPDF/19/19-251/173468/20210331122350729_19-251_bsac_Scholars_Law_Non-Profit_Orgs.pdf">nonprofit law scholars</a> filed briefs in support of California’s position. </p>
<h2>2. What does the ruling mean?</h2>
<p>California will no longer be able to mandate that charities disclose their donors to the state as a matter of course. </p>
<p>The <a href="https://supreme.justia.com/cases/federal/us/594/19-251/#tab-opinion-4446163">majority opinion</a> by Chief Justice John Roberts recognized the state’s important interest in rooting out charity fraud but held that a donor disclosure system can be maintained only if it is narrowly tailored to meet the government’s needs. The court found California’s law, on the other hand, to be overly broad. To reach that conclusion, the majority relied heavily on evidence filed in the case that California did not actually use the donor information it demanded to initiate anti-fraud actions.</p>
<p>The three dissenting justices <a href="https://supreme.justia.com/cases/federal/us/594/19-251/#tab-opinion-4446162">strongly disagreed</a> with both the majority’s approach to the law and its reading of the facts. Justice Sonia Sotomayor wrote that the plaintiffs failed to show that California’s law had actually burdened their right to association, as they argued prior Supreme Court First Amendment cases require. Absent such a showing, these justices said, they would have sustained the law, especially since it did not require public disclosure and most donors were probably “agnostic” about the requirement.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/397135/original/file-20210426-17-d2vsaw.jpg?ixlib=rb-1.1.0&rect=61%2C35%2C5775%2C2817&q=45&auto=format&w=1000&fit=clip"><img alt="Drawing of a man in a suit and tie speaking through a dollar-decorated megaphone" src="https://images.theconversation.com/files/397135/original/file-20210426-17-d2vsaw.jpg?ixlib=rb-1.1.0&rect=61%2C35%2C5775%2C2817&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/397135/original/file-20210426-17-d2vsaw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/397135/original/file-20210426-17-d2vsaw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/397135/original/file-20210426-17-d2vsaw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/397135/original/file-20210426-17-d2vsaw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/397135/original/file-20210426-17-d2vsaw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/397135/original/file-20210426-17-d2vsaw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The court found that requiring donor disclosure could chill free speech.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/businessman-holding-money-megaphone-shouting-royalty-free-illustration/1226753159">sesame/DigitalVision Vectors via Getty Images</a></span>
</figcaption>
</figure>
<h2>3. Does this change how states oversee nonprofits?</h2>
<p>Yes, but not all states will be affected in the same way. </p>
<p><a href="https://www.supremecourt.gov/DocketPDF/19/19-251/173639/20210331195434401_19-251_19-255_Brief%20for%20New%20York%20et%20al%20Amici%20Curiae.pdf">New York, Hawaii and New Jersey</a> have similar donor disclosure laws, which this case will also undo. And the court didn’t give California or these other states an easy way to “cure” such laws so they would pass constitutional muster, whether by improving the security of the data or exempting controversial charities from disclosure.</p>
<p>States that tackle charity fraud through other means, such as attorney general investigations, are mostly unaffected by the ruling. Even those states that forgo donor disclosure impose many other reporting requirements on the charities they monitor, including demands that charities identify their directors and officers to regulators. The majority opinion’s broad language about the need to justify disclosure requirements could prompt future challenges to these more widespread charity reporting requirements. </p>
<h2>4. Does this mean the IRS can’t collect this information either?</h2>
<p>The federal government mandates that nonprofit charities disclose the same information about major donors to the Internal Revenue Service. </p>
<p>But today’s Supreme Court case addresses only the constitutionality of a state law requirement. Neither Americans for Prosperity Foundation nor the Thomas More Law Center tried to connect their objections over California’s law to the IRS’ disclosure mandate. </p>
<p>Of course, their decisions not to do so in this case do not prevent future litigation challenging the federal donor disclosure system.</p>
<p>The outcome of such a case is uncertain. A court could still uphold the federal requirement if it found the IRS’ disclosure rule was tightly connected to its important role as a tax regulator. After all, the IRS does not only monitor charities for fraud and abuse as state attorneys general do. It also oversees a system that provides substantial tax benefits to exempt organizations and their donors, a point the <a href="https://www.supremecourt.gov/DocketPDF/19/19-251/170618/20210301204917004_AFPF%20030121.7.pdf">U.S. solicitor general emphasized</a> to the court. </p>
<p>The federal government’s defense against an attack on its disclosure requirement could also point to its already strong protections for donor data. While certainly <a href="https://www.propublica.org/article/the-secret-irs-files-trove-of-never-before-seen-records-reveal-how-the-wealthiest-avoid-income-tax">not immune to leaks</a> or hacking, the IRS maintains a highly secure database of confidential tax information. Moreover, attempts to breach it <a href="https://www.govinfo.gov/content/pkg/USCODE-2014-title26/pdf/USCODE-2014-title26-subtitleF-chap76-subchapB-sec7431.pdf">trigger civil</a> and <a href="https://www.govinfo.gov/content/pkg/USCODE-2015-title26/pdf/USCODE-2015-title26-subtitleF-chap75-subchapA-partI-sec7213.pdf">criminal penalties</a>.</p>
<p>If the courts were eventually to strike down the IRS’ donor disclosure requirements, though, it would significantly upend federal regulation of tax-exempt charities. </p>
<p>This case could also portend a future challenge over federal campaign finance law. Right now, the <a href="https://www.fec.gov/introduction-campaign-finance/how-to-research-public-records/">Federal Election Commission collects</a> information on political donors and candidates for the public record. <a href="https://time.com/5957340/supreme-court-campaign-finance-americans-for-prosperity-foundation-v-rodriquez/">Some worry</a> the California decision imperils this disclosure system as well. </p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p><img src="https://counter.theconversation.com/content/135174/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dana Brakman Reiser does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a 6-3 ruling, the court’s majority said the requirements violated donors’ First Amendment rights by subjecting them to potential harassment.Dana Brakman Reiser, Professor of Law, Brooklyn Law SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1306512020-10-15T11:15:13Z2020-10-15T11:15:13ZThe scale of US election spending explained in five graphs<p>The amount of money spent on US elections eclipses the <a href="https://data.worldbank.org/indicator/NY.GDP.MKTP.CD">annual total economic output</a> of some small countries. The total spending by candidates, political parties and independent campaign groups in the 2016 race <a href="https://www.opensecrets.org/overview/cost.php">was US$6.5 billion</a> – comparable to the GDP that year of Monaco, Kosovo or Liechtenstein, and more than double that of Liberia.</p>
<p>The 2020 election cycle is <a href="https://www.forbes.com/sites/bradadgate/2019/09/03/the-2020-elections-will-set-another-ad-spending-record/#69b823db1836">forecast to smash previous spending records</a>, with the Center for Responsive Politics estimating it will cost US$11 billion. That would be comparable to the 2019 GDP of Equatorial Guinea or Chad. </p>
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<a href="https://images.theconversation.com/files/363422/original/file-20201014-21-1p58ajq.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/363422/original/file-20201014-21-1p58ajq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/363422/original/file-20201014-21-1p58ajq.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=275&fit=crop&dpr=1 600w, https://images.theconversation.com/files/363422/original/file-20201014-21-1p58ajq.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=275&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/363422/original/file-20201014-21-1p58ajq.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=275&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/363422/original/file-20201014-21-1p58ajq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=345&fit=crop&dpr=1 754w, https://images.theconversation.com/files/363422/original/file-20201014-21-1p58ajq.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=345&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/363422/original/file-20201014-21-1p58ajq.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=345&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
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<p>By late September 2020, <a href="http://www.opensecrets.org/2020-presidential-race/donald-trump/expenditures?id=N00023864">President Donald Trump’s</a> direct re-election campaign had already spent US$362.5 million, while <a href="http://www.opensecrets.org/2020-presidential-race/joe-biden/expenditures?id=N00001669">Joe Biden’s</a> had spent US$352.4 million. But this only tells part of the story of the money pouring into this election. </p>
<p>Although campaigns have traditionally been funded by direct donations to candidates, in 2010 <a href="https://www.fec.gov/updates/citizens-united-v-fecsupreme-court/">the US Supreme Court ruled</a> that restrictions on independent campaign spending by corporations and labour unions were unconstitutional, due to their restriction on free speech. </p>
<p>This ruling, known as Citizen United, meant that corporations and unions could spend unlimited amounts of money on political campaigns, paving the way for the production of what has become known as Super Pacs. </p>
<p>While direct corporate and union donations to candidates remain illegal, Super Pacs have been described as <a href="https://publicintegrity.org/politics/the-citizens-united-decision-and-why-it-matters/">“shadow political parties”</a>, which are permitted to raise funds to run their own campaigns independently of candidates. <a href="http://www.gwlr.org/wp-content/uploads/2018/01/81-Geo.-Wash.-L.-Rev.-1902.pdf">They are subject to fewer regulations</a>, due to the constitutional protection of free speech, are often able to raise money from anonymous sources due to legal loopholes, and are permitted to receive unlimited donations from corporate and union sources.</p>
<p>As a comparative political finance scholar, my ongoing research involves analysing the development of political finance regulations across a number of advanced liberal democracies. As the 2020 presidential election race nears its end, it’s worth looking back at what has changed in the past decade, and what it tells us about how money is being spent. </p>
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Read more:
<a href="https://theconversation.com/election-2020-sees-record-11-billion-in-campaign-spending-mostly-from-a-handful-of-super-rich-donors-145381">Election 2020 sees record $11 billion in campaign spending, mostly from a handful of super-rich donors</a>
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<h2>Increased independent spending</h2>
<p>Since the Citizens United ruling, election expenditure has significantly increased, with an immediate explosion of independent spending from groups such as Super Pacs, directly after the decision. Comparing the electoral cycle directly before Citizens United in 2008 to the next comparable cycle in 2012, using data from the Center for Responsive Politics via the open source website Open Secrets, reveals an increase of almost 600% in just four years. </p>
<p>This increase continued, albeit at a slower rate, reaching a record high of <a href="https://www.opensecrets.org/outsidespending/index.php?filter=&type=A">US$1.4 billion in 2016</a>. At the time of writing, independent spending on the 2020 election has <a href="https://www.opensecrets.org/outsidespending/index.php?filter=&type=A">already exceeded comparable spending in the 2016 cycle</a>, with US$1.6 billion being spent in this way. This is an increase from the 2016 figure of roughly US$1.4 billion.</p>
<figure class="align-center ">
<img alt="Graph showing total US election expenditure by independent sources" src="https://images.theconversation.com/files/360850/original/file-20200930-24-16a1r99.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360850/original/file-20200930-24-16a1r99.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360850/original/file-20200930-24-16a1r99.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360850/original/file-20200930-24-16a1r99.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360850/original/file-20200930-24-16a1r99.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360850/original/file-20200930-24-16a1r99.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360850/original/file-20200930-24-16a1r99.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><a class="source" href="https://www.opensecrets.org/outsidespending/index.php?filter=&type=A">Open Secrets</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<p>While this increase indicated an upward trend in electoral spending, patterns in spending by presidential candidates <a href="https://www.opensecrets.org/overview/">have not mirrored this</a>. </p>
<p>In 2008, presidential candidates spent a combined total of around US$1.7 billion. A decrease of 18% followed in the 2012 electoral cycle and, although presidential candidates increased their spending in the 2016 cycle, this value was still below that of 2008, reaching a figure close to US$1.5 billion in 2016.</p>
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<img alt="Total spending by US presidential candidates in election years since 2004." src="https://images.theconversation.com/files/360852/original/file-20200930-18-1hkxk7d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360852/original/file-20200930-18-1hkxk7d.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360852/original/file-20200930-18-1hkxk7d.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360852/original/file-20200930-18-1hkxk7d.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360852/original/file-20200930-18-1hkxk7d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360852/original/file-20200930-18-1hkxk7d.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360852/original/file-20200930-18-1hkxk7d.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><a class="source" href="https://www.opensecrets.org/overview/">Open Secrets</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<p>Analysing spending data from the Center for Responsive Politics shows that the total value of independent expenditures increased by roughly 875% between the 2008 and 2016 election cycles, while spending by presidential candidates decreased by 13% in this period. These trends show a <a href="https://www.opensecrets.org/news/reports/a-decade-under-citizens-united">shifting pattern toward independent campaigning</a>, with spending in this area matching that of presidential candidates in 2016.</p>
<h2>Changing dynamics of donors</h2>
<p>In order to keep up with election costs, some candidates focus their fundraising on donations below US$200. During the 2018 midterm elections, senators Elizabeth Warren and Bernie Sanders respectively <a href="https://www.opensecrets.org/elections-overview/large-vs-small-donations?cycle=2018&type=M">raised 76% and 56%</a> of their total funds in this way. </p>
<p>In contrast, some candidates refrain from focusing any efforts at small donors, with senators Mitch McConnell, Chuck Schumer and Rob Portman receiving <a href="https://www.opensecrets.org/elections-overview/large-vs-small-donations?cycle=2018&type=M">less than 5% of their 2018 midterm election funds from donations below US$200</a>.</p>
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<img alt="Graph showing how the proportion of large donations in US elections is rising" src="https://images.theconversation.com/files/360853/original/file-20200930-16-1c4k3u5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360853/original/file-20200930-16-1c4k3u5.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360853/original/file-20200930-16-1c4k3u5.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360853/original/file-20200930-16-1c4k3u5.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360853/original/file-20200930-16-1c4k3u5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360853/original/file-20200930-16-1c4k3u5.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360853/original/file-20200930-16-1c4k3u5.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><a class="source" href="https://www.opensecrets.org/overview/donordemographics.php">Open Secrets</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<p>While these cases show the extremes of small donor versus large donor fundraising strategies, financial disclosures reveal an overall trend toward large donor strategies since the Citizens United ruling. In 2010, large donations accounted for 62.6% of the value of donations to all candidates, parties, and independent spending groups such as Super Pacs. This percentage has increased in every election cycle since and, in 2018, large donations <a href="https://www.opensecrets.org/overview/donordemographics.php">accounted for 71%</a> of total fundraising, according to data from Open Secrets. </p>
<h2>Impact of spending limits</h2>
<p>In presidential elections, candidates are subject to spending limits if they accept public funding. With an increased amount of private money in the system, <a href="https://sunlightfoundation.com/2016/01/27/why-did-only-1-presidential-candidate-take-public-financing/">most candidates have chosen to forgo public subsidies</a> in recent elections, rendering the spending limit obsolete.</p>
<p>Several other countries, including Canada and the UK, successfully cap election spending. In the UK, limits are set at £30,000 per seat contested by each party. This means that parties which contest all seats are limited to roughly <a href="https://www.bbc.co.uk/news/election-2019-50170067">£19.5 million in campaign expenditures</a>. As a result, campaign costs in the UK are significantly lower than in the US. The 2017 general election campaign <a href="http://search.electoralcommission.org.uk">cost around £42 million to parties and campaigners,</a> rising from around £39 million in 2015.</p>
<p>The use of campaign spending limits has also restricted the inflation of campaign costs, both in Canada and the UK. Without effective spending caps, presidential campaign costs in the US <a href="https://www.opensecrets.org/overview/">increased by 75% between 2004 and 2016.</a></p>
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<a href="https://images.theconversation.com/files/360847/original/file-20200930-24-1ccjvjq.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Graph showing election spending by parties and presidentical candidates in the US, UK and Canada" src="https://images.theconversation.com/files/360847/original/file-20200930-24-1ccjvjq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/360847/original/file-20200930-24-1ccjvjq.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=177&fit=crop&dpr=1 600w, https://images.theconversation.com/files/360847/original/file-20200930-24-1ccjvjq.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=177&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/360847/original/file-20200930-24-1ccjvjq.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=177&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/360847/original/file-20200930-24-1ccjvjq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=223&fit=crop&dpr=1 754w, https://images.theconversation.com/files/360847/original/file-20200930-24-1ccjvjq.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=223&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/360847/original/file-20200930-24-1ccjvjq.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=223&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<p>If the trends exhibited in these graphs continue, spending in US political campaigns is likely to become less transparent and more concentrated. With the rise in the proportion of money coming from independent groups, which is largely anonymous due to disclosure loopholes, the true sources of funds will become increasingly opaque.</p><img src="https://counter.theconversation.com/content/130651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William C.R. Horncastle does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>How US election spending has changed in the past decade.William C.R. Horncastle, PhD Candidate, Department of Political Science and International Studies, University of BirminghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1285342019-12-12T14:15:21Z2019-12-12T14:15:21ZHow Canada’s new election law has silenced political debate<figure><img src="https://images.theconversation.com/files/306216/original/file-20191210-95115-d0oxdg.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C2964%2C1841&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People march during a climate strike in Montréal in September 2019. Climate change is a top concern for Canadians, but new Elections Canada rules left civil society organizations fearing they could not speak out on the need for climate action during the election. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Graham Hughes</span></span></figcaption></figure><p>It’s almost 2020, and with a minority government in power, another federal election could be upon Canadians sooner than expected.</p>
<p>So as the dust settles on the 2019 vote, it’s important to examine the data on an issue that clouded the election campaign — the impact of new <a href="https://theconversation.com/why-canadas-environmental-charities-are-afraid-to-talk-about-climate-change-during-the-election-122114">Elections Canada regulations</a> on public debate by civil society organizations.</p>
<p>In June 2019, the federal government amended Canada’s <a href="https://laws.justice.gc.ca/PDF/E-2.01.pdf">Elections Act</a>. The rules require third parties, including non-profit groups, to register with Elections Canada if they spend more than $500 on “political advertising.” That includes any spending to promote positions during election campaigns on public policy issues on which political parties have taken a stand, or to support or oppose particular candidates and parties.</p>
<p>The new Elections Act also sets specific spending limits on third-party election advertising. </p>
<p>These changes to the Elections Act are important measures to prevent the type of unlimited spending by political action committees (PACs) that followed the <a href="https://news.law.fordham.edu/jcfl/2018/03/07/citizens-united-8-years-later/">Citizens United</a> decision by the United States Supreme Court in 2010. The court ruled that spending limits on third-party election advertising was an unconstitutional restriction of free speech.</p>
<p>Since 2010, what are known as <a href="https://www.opensecrets.org/outsidespending/summ.php?chrt=V&type=C">super-PACs</a> have subsequently become major players in American elections, enabling wealthy individuals to exert enormous political influence. Indeed, wealthy donors spent more than <a href="https://www.opensecrets.org/news/2016/11/1-4-billion-and-counting-in-spending-by-super-pacs-dark-money-groups/">US$1.4 billion</a> during the 2016 presidential election campaign. </p>
<h2>Silencing voices</h2>
<p>The new <a href="https://www.elections.ca/content.aspx?section=pol&document=index&dir=thi/ec20227&lang=e">Elections Canada regulations</a> impose spending limits on third parties ($1,023,400 in the pre-election period and $511,700 in the election period) and specific regulations against collusion between third parties that would prevent the type of unlimited spending by super-PACs in the United States.</p>
<p>However, the new Elections Canada regulations have also played a role in silencing the voices of many Canadian organizations on a wide range of public policy issues — from climate change to health care to international aid.</p>
<p>This chilling effect came into play most powerfully when Elections Canada indicated in a training session for non-profits that organizations with public policy positions on climate change would need to register and report on their spending, given that right-wing candidate Maxime Bernier had made <a href="https://www.cbc.ca/news/politics/environment-groups-warned-climate-change-real-partisan-1.5251763">public statements denying climate change</a>. </p>
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<p>The silencing impact may not have been intentional, but it is very real and represents a threat to healthy public debate and democracy in Canada. Elections are important opportunities for Canadians to debate public policy, and it’s crucial that civil society groups are able to contribute to those debates. </p>
<p>On the surface, the new Elections Act appears to strike a balance between free speech and excessive influence by wealthy individuals and corporations. </p>
<p>The Elections Act does not prohibit civil society organizations from spending money to promote public policy positions. However, many organizations saw the requirement to register and report on spending as ominous — especially after the crackdown on charities carried out by the Canada Revenue Agency (CRA) under <a href="https://www.fasken.com/en/knowledge/2018/08/political-activities-of-charities-a-new-world/">Stephen Harper’s Conservative government</a>. </p>
<h2>Fears of another crackdown</h2>
<p>Justin Trudeau’s government made significant changes to the <a href="https://www.canada.ca/en/revenue-agency/services/charities-giving/charities/policies-guidance/public-policy-dialogue-development-activities.html?utm_source=stkhldrs&utm_medium=eml&utm_campaign=PPDDA">CRA regulations</a> in 2019 that allow charities to engage much more freely in public policy debates. But many Canadian civil society groups still worry that the federal government will crack down on organizations that criticize its policies. </p>
<p>The regulations also add bureaucratic headaches and expenses to non-profit organizations, many of which cannot afford to pay additional costs for participation in public policy debates. </p>
<p>Staff with many Canadian civil society groups have reported that their organizations did not speak out on public policy issues during the election campaign for fear they’d be penalized by Elections Canada or the CRA. </p>
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<strong>
Read more:
<a href="https://theconversation.com/why-canadas-environmental-charities-are-afraid-to-talk-about-climate-change-during-the-election-122114">Why Canada’s environmental charities are afraid to talk about climate change during the election</a>
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<p>The silencing effect is also clear in data from <a href="https://www.elections.ca/content.aspx?section=fin&document=index&dir=oth/thi/advert/tp43&lang=e">Elections Canada</a>.</p>
<p>There are more than 175,000 registered non-profit and charitable organizations in Canada. Only 147 registered to report election advertising in 2019, only 50 reported spending more than $10,000 (the reporting threshold set by Elections Canada) and only two have charitable status. </p>
<h2>Climate change a key concern</h2>
<p><a href="https://www.ipsos.com/en-ca/news-polls/Four-Weeks-In-Climate-Change-Fastest-Moving-Health-Care-Still-Top-Issue">Climate change</a> was a top concern for Canadians during the 2019 election campaign. However, <a href="https://johndcameron.com/data-on-ngo-advocacy-in-canada/">my analysis</a> of the Elections Canada data shows that only 17 environmental organizations registered, and only seven reported spending more than $10,000 (for a cumulative total of $634,307) during the election period. </p>
<p>Similarly, while Conservative Leader Andrew Scheer made Canada’s international aid an election issue by proposing to cut it by 25 per cent, only five international social justice organizations registered, and none of them reported spending over $10,000. </p>
<p><a href="https://www.ipsos.com/en-ca/news-polls/Four-Weeks-In-Climate-Change-Fastest-Moving-Health-Care-Still-Top-Issue">Health care</a> is always an important issue to Canadians, but just one (the Canadian Medical Association) reported spending over $10,000.</p>
<p>The data suggests the new rules kept conservative groups quiet too. Only one gun rights organization reported any spending ($32,091) and just seven explicitly pro-Conservative organizations registered, spending a total of $690,922. As of Oct. 14, 2019 — a week before the election —the total reported by all organizations was just over $9.4 million. </p>
<p>Canada’s new Elections Act may have prevented the type of mammoth spending seen in the United States via super-PACs, but it’s been at the expense of silencing many Canadian organizations with important positions on public policy issues. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/306211/original/file-20191210-95159-1tz8r4a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/306211/original/file-20191210-95159-1tz8r4a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/306211/original/file-20191210-95159-1tz8r4a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=434&fit=crop&dpr=1 600w, https://images.theconversation.com/files/306211/original/file-20191210-95159-1tz8r4a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=434&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/306211/original/file-20191210-95159-1tz8r4a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=434&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/306211/original/file-20191210-95159-1tz8r4a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=546&fit=crop&dpr=1 754w, https://images.theconversation.com/files/306211/original/file-20191210-95159-1tz8r4a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=546&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/306211/original/file-20191210-95159-1tz8r4a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=546&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The $500 limit must be reviewed.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Elections Canada needs to do more to make sure that the new regulations do not block public policy debates. It should also review the $500 threshold for requiring organizations to register with Elections Canada. </p>
<p>With a minority government in Parliament, Canadians could soon head to the polls again, so there may not be much time to make these changes.</p>
<p><em>This is a corrected version of a story originally published Dec. 12, 2019. This version clarifies details about the amended Elections Act and corrects the number of health-sector organizations that registered with Elections Canada.</em></p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/ca/newsletters?utm_source=TCCA&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/128534/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Cameron receives funding from the Social Sciences and Humanities Research Council of Canada. </span></em></p>Canada’s new Elections Act may have prevented the type of mammoth election spending seen in the United States via super-PACs, but it’s been at the expense of public debate.John D. Cameron, Associate Professor, Department of International Development Studies, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1028652018-10-05T10:42:00Z2018-10-05T10:42:00ZCould an artificial intelligence be considered a person under the law?<figure><img src="https://images.theconversation.com/files/238476/original/file-20180928-48659-1gkudpd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sophia, a robot granted citizenship in Saudi Arabia.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Roboter_Sophia_MSC_2018.jpg">MSC/wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Humans aren’t the only people in society – at least according to the law. In the U.S., <a href="https://www.theatlantic.com/business/archive/2018/03/corporations-people-adam-winkler/554852/">corporations have been given rights of free speech</a> and religion. Some <a href="https://theconversation.com/what-if-nature-like-corporations-had-the-rights-and-protections-of-a-person-64947">natural features also have person-like rights</a>. But both of those required changes to the legal system. A new argument has laid a path for artificial intelligence systems to be recognized as people too – without any legislation, court rulings or other revisions to existing law.</p>
<p>Legal scholar Shawn Bayern has shown that anyone can <a href="https://doi.org/10.1017/S1867299X00005729">confer legal personhood on a computer system</a>, by putting it in control of a limited liability corporation in the U.S. If that maneuver is upheld in courts, <a href="https://cyber.harvard.edu/publication/2018/artificial-intelligence-human-rights">artificial intelligence systems</a> would be able to own property, sue, hire lawyers and enjoy freedom of speech and other protections under the law. <a href="https://scholar.google.com/citations?user=0_Rq68cAAAAJ&hl=en">In my view</a>, human rights and dignity would suffer as a result. </p>
<h2>The corporate loophole</h2>
<p>Giving AIs rights similar to humans involves a technical lawyerly maneuver. It starts with <a href="https://doi.org/10.1017/S1867299X00005729">one person setting up two limited liability companies</a> and turning over control of each company to a separate autonomous or artificially intelligent system. Then the person would add each company as a member of the other LLC. In the last step, the person would withdraw from both LLCs, leaving each LLC – a corporate entity with legal personhood – governed only by the other’s AI system.</p>
<p>That process doesn’t require the computer system to have any particular level of intelligence or capability. It could just be a sequence of “if” statements looking, for example, at the stock market and <a href="https://www.investopedia.com/articles/active-trading/101014/basics-algorithmic-trading-concepts-and-examples.asp">making decisions to buy and sell</a> based on prices falling or rising. It could even be an algorithm that <a href="http://www.randomdecisionmaker.com/">makes decisions randomly</a>, or an <a href="https://scratch.mit.edu/projects/115569822/">emulation of an amoeba</a>.</p>
<h2>Reducing human status</h2>
<p>Granting human rights to a computer would degrade human dignity. For instance, when <a href="https://www.independent.co.uk/life-style/gadgets-and-tech/news/saudi-arabia-robot-sophia-citizenship-android-riyadh-citizen-passport-future-a8021601.html">Saudi Arabia granted citizenship to a robot called Sophia</a>, <a href="https://qz.com/1205017/saudi-arabias-robot-citizen-is-eroding-human-rights/">human women</a>, including <a href="https://www.washingtonpost.com/news/innovations/wp/2017/10/29/saudi-arabia-which-denies-women-equal-rights-makes-a-robot-a-citizen/">feminist scholars</a>, objected, noting that the robot was given more rights than many Saudi women have.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/R0bVxbRCd-U?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">An interview with Sophia, a robot citizen of Saudi Arabia.</span></figcaption>
</figure>
<p>In certain places, some people might have fewer rights than nonintelligent software and robots. In countries that limit <a href="http://www.un.org/en/universal-declaration-human-rights/">citizens’ rights</a> to free speech, free religious practice and expression of sexuality, corporations – potentially including AI-run companies – <a href="https://www.huffingtonpost.com/adam-winkler/corporations-are-people-a_b_5543833.html">could have more rights</a>. That would be an enormous indignity.</p>
<p>The risk doesn’t end there: If AI systems became more intelligent than people, <a href="https://theconversation.com/what-an-artificial-intelligence-researcher-fears-about-ai-78655">humans could be relegated to an inferior role</a> – as workers hired and fired by AI corporate overlords – or even <a href="https://www.imdb.com/title/tt2145829/">challenged for social dominance</a>.</p>
<p>Artificial intelligence systems could be tasked with law enforcement among human populations – acting as <a href="https://theconversation.com/we-need-to-know-the-algorithms-the-government-uses-to-make-important-decisions-about-us-57869">judges, jurors, jailers and even executioners</a>. <a href="https://theconversation.com/losing-control-the-dangers-of-killer-robots-58262">Warrior robots</a> could similarly be assigned to the military and given power to decide on targets and acceptable collateral damage – even in violation of <a href="https://theconversation.com/ban-killer-robots-to-protect-fundamental-moral-and-legal-principles-101427">international humanitarian laws</a>. Most legal systems are not set up to <a href="https://theconversation.com/ban-killer-robots-to-protect-fundamental-moral-and-legal-principles-101427">punish robots</a> or otherwise hold them accountable for wrongdoing.</p>
<h2>What about voting?</h2>
<p>Granting voting rights to systems that can copy themselves would render humans’ votes meaningless. Even without taking that significant step, though, the possibility of AI-controlled corporations with basic human rights poses serious dangers. No current laws would prevent a <a href="https://theconversation.com/fighting-malevolent-ai-artificial-intelligence-meet-cybersecurity-60361">malevolent AI</a> from operating a corporation that worked to subjugate or exterminate humanity <a href="https://www.reuters.com/article/us-usa-court-employment/companies-win-big-at-us-top-court-on-worker-class-action-curbs-idUSKCN1IM1GW">through legal means</a> and political influence. Computer-controlled companies could turn out to be less responsive to public opinion or protests than human-run firms are.</p>
<h2>Immortal wealth</h2>
<p>Two other aspects of corporations make people even more vulnerable to AI systems with human legal rights: They don’t die, and they can give unlimited amounts of money to political candidates and groups. </p>
<p>Artificial intelligences could earn money by exploiting workers, using algorithms to <a href="https://www.seattletimes.com/business/trust-the-machines-these-funds-are-run-by-artificial-intelligence/">price goods and manage investments</a>, and find new ways to <a href="https://www.ibm.com/blogs/watson/2018/04/how-kpmg-uses-ai-to-empower-their-auditors/">automate key business processes</a>. Over long periods of time, that could <a href="https://www.cnbc.com/2018/02/01/apple-earnings-q1-2018-how-much-money-does-apple-have.html">add up to enormous earnings</a> – which would never be split up among descendants. That wealth could easily be <a href="https://www.businessinsider.com/how-corporations-turned-into-political-beasts-2015-4">converted into political power</a>. </p>
<p>Politicians financially backed by algorithmic entities would be able to take on legislative bodies, impeach presidents and help to get figureheads appointed to the Supreme Court. Those human figureheads could be used to expand corporate rights or even establish new rights specific to artificial intelligence systems – expanding the threats to humanity even more.</p><img src="https://counter.theconversation.com/content/102865/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roman V. Yampolskiy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal loophole could grant computer systems many legal rights people have – threatening human rights and dignity and setting up some real legal and moral problems.Roman V. Yampolskiy, Associate Professor of Computer Engineering and Computer Science, University of LouisvilleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/996322018-07-24T10:29:26Z2018-07-24T10:29:26ZMoney, politics and Justice Anthony Kennedy: Revisiting Citizens United<p>The decision in <a href="https://www.oyez.org/cases/2008/08-205">Citizens United v. Federal Election Commission</a>, issued ten years ago, is one of retired U.S. Supreme Court Justice Anthony Kennedy’s most maligned rulings. <a href="https://www.thenation.com/article/artificial-persons/">Many condemn</a> the opinion for treating corporations as people, money as speech, and elections as commodities to be sold to the highest bidder. </p>
<p>President Barack Obama <a href="https://www.nytimes.com/2010/01/29/us/politics/29scotus.html">lambasted</a> Citizens United in a State of the Union address. During her 2016 presidential campaign, Hillary Clinton <a href="https://www.economist.com/democracy-in-america/2016/08/16/why-clintons-plan-to-scrap-citizens-united-wont-work">promised</a> to nominate a Supreme Court justice who would overturn it. </p>
<p>Citizens United does not deserve such scorn. </p>
<p>As <a href="http://www.law.fsu.edu/our-faculty/profiles/morley">an election law scholar</a> who has litigated campaign finance cases, <a href="https://www.law.cornell.edu/supremecourt/text/12-536">including in the U.S. Supreme Court</a>, I believe Citizens United is a straightforward application of free speech principles and, like Kennedy’s jurisprudence as a whole, reflects a balance of conservative and liberal legal conclusions. </p>
<h2>The history</h2>
<p>Citizens United was a non-profit corporation that received “a small portion of its funds” from for-profit corporations. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=943&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=943&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=943&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1186&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1186&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227633/original/file-20180713-27024-wqcyyj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1186&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">David Bossie, leader of Citizens United and producer of ‘Hillary: The Movie’</span>
<span class="attribution"><span class="source">AP Photo/Evan Vucci</span></span>
</figcaption>
</figure>
<p>In 2008, while Hillary Clinton was seeking the Democratic Party’s nomination for President, it released a documentary called <a href="http://www.hillarythemovie.com/">Hillary: The Movie</a>. The film featured numerous interviews with people who, <a href="https://supreme.justia.com/cases/federal/us/558/310/">the Supreme Court explained</a>, were “quite critical” of her. </p>
<p>Citizens United wanted to pay a cable company $1.2 million to make the documentary available for free, on demand, to the company’s subscribers. It also wished to air paid advertisements for the movie. </p>
<p><a href="https://www.law.cornell.edu/uscode/text/52/30118">Federal law</a>, however, prohibited corporations from spending money to expressly advocate a federal candidate’s election or defeat. This restriction applied to Hillary: The Movie because Citizens United had accepted some corporate funding and the film amounted to express advocacy. </p>
<p>Citizens United sued, arguing these restrictions violated its First Amendment rights.</p>
<h2>The ruling</h2>
<p><a href="https://supreme.justia.com/cases/federal/us/558/310/#tab-opinion-1963051">Kennedy’s opinion</a> in Citizens United blended conservative concern for free speech with a more liberal focus on transparency. </p>
<p>The conservative majority held corporations have the right to create and distribute political advertisements and other election-related communications such as Hillary: The Movie. </p>
<p>All the justices except Clarence Thomas joined in the final part of the opinion, which held that the government may require speakers like Citizens United to publicly report such expenditures and include disclaimers on their election-related communications, revealing who paid for them. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=833&fit=crop&dpr=1 600w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=833&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=833&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1047&fit=crop&dpr=1 754w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1047&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/227634/original/file-20180713-27015-1ueb4sf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1047&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Justice Anthony Kennedy in 2010.</span>
<span class="attribution"><span class="source">AP Photo/Pablo Martinez Monsivais</span></span>
</figcaption>
</figure>
<p>Citizens United ended unnecessary restraints on political expression and gave voters access to a wider range of election-related information. It also afforded corporations a fair chance to present their perspective on elections that could have tremendous consequences for them. </p>
<p>Corporations are taxed and subject to government regulation. They play vital roles in providing the jobs, goods and services that drive our economy. It is only fair to allow corporations to voice their institutional views about candidates for public office — views that voters, of course, are free to completely disregard. </p>
<h2>Money, speech and collective political action</h2>
<p>Critics claim Citizens United allowed corporate America to buy elections. </p>
<p>The central question in the case, however, was whether corporations could spend money to engage in election-related speech. <a href="https://www.law.cornell.edu/uscode/text/52/30118">It remains illegal</a> for corporations to contribute money to candidates, political parties or traditional political action committees (PACs). </p>
<p>Moreover, most of the principles Citizens United relied upon were established in cases decided decades earlier. </p>
<p>The 1976 landmark case <a href="https://caselaw.findlaw.com/us-supreme-court/424/1.html">Buckley v. Valeo</a> set forth the constitutional principles governing modern campaign finance law. It reaffirmed that election-related speech lies at the heart of the First Amendment. And it recognized that, while money is not literally speech, it is essential to virtually every form of political speech. </p>
<p>Political signs require poster board and markers. Political flyers must be duplicated. Political advertisements cost money to broadcast or publish. </p>
<p>Limiting political spending, the Supreme Court explained, reduces “the number of issues discussed, the depth of their exploration, and the size of the audience reached.” The government may not limit political expression, the court emphasized, just because it costs money. Rather, such “independent expenditures” remain pure political speech entitled to maximum constitutional protection. </p>
<p>In the decades after Buckley, the Supreme Court held that people retain this right to engage in pure election-related expression when they join together to achieve political goals collectively. Groups such as <a href="https://caselaw.findlaw.com/us-supreme-court/470/480.html">political action committees</a>, <a href="https://caselaw.findlaw.com/us-supreme-court/518/604.html">political parties</a> and <a href="https://caselaw.findlaw.com/us-supreme-court/479/238.html">certain non-profit corporations</a> have the First Amendment right to spend money to fund election-related speech without government limits. Several liberal justices joined in many of these rulings. </p>
<p>Citizens United extended to for-profit corporations the same constitutional right to advocate for or against candidates that other types of private associations - as well as the corporations’ stockholders, directors, executives and employees - already possessed.</p>
<h2>A trickle, not a flood</h2>
<p>Critics proclaimed that Citizens United would open the floodgates to a deluge of corporate political spending. </p>
<p>They were wrong. </p>
<p>University of New Mexico <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2300930">Professor Wendy Hansen and her co-authors discovered</a> that, in the 2012 election, “not a single Fortune 500+ company” made independent expenditures. And only nine Fortune 500 companies made contributions to SuperPACs, totaling less than $5 million.</p>
<p>This trend persisted in ensuing elections. The <a href="https://www.ced.org/pdf/TCB-CED-The-Landscape-of-Campaign-Contributions.pdf">Conference Board’s Committee for Economic Development reports</a> that only 10 corporations made independent expenditures in 2016, and they totaled less than $700,000. </p>
<p>Such results are unsurprising. Most major corporations do not want to alienate up to half their potential customers by spending millions of dollars publicly aligning themselves with a particular candidate or political party. </p>
<h2>What about SuperPACs?</h2>
<p>A more substantial objection is that Citizens United <a href="http://www.slate.com/articles/news_and_politics/jurisprudence/2011/10/citizens_united_how_justice_kennedy_has_paved_the_way_for_the_re.html">paved the way for “SuperPACs.”</a> </p>
<p>SuperPACs are political committees that only fund election-related speech and activities without input from candidates. Because SuperPACs cannot contribute to candidates or political parties, <a href="https://transition.fec.gov/law/litigation/speechnow_ac_opinion.pdf">people may give</a> unlimited amounts of money to them. </p>
<p>Citizens United didn’t create the principles that led to SuperPACs; Buckley did. SuperPACs simply let people join together to engage in the same political speech and spending they were already free, under Buckley, to perform on their own. </p>
<p>Kennedy’s opinion in Citizens United did not cause a corporate Armageddon for our political system. It was a victory for the fundamental First Amendment right of all Americans, individually or collectively through corporations, to engage in pure political speech about federal elections. </p>
<p><em>This is an updated version of an article originally published on July 24, 2018.</em></p><img src="https://counter.theconversation.com/content/99632/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael T. Morley does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Citizens United, issued 10 years ago, is one of the most controversial and scorned rulings in modern Supreme Court history. Is that condemnation undeserved?Michael T. Morley, Assistant Professor of Law, Florida State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/904272018-05-31T10:43:30Z2018-05-31T10:43:30ZMissouri’s dark money scandal, explained<figure><img src="https://images.theconversation.com/files/221070/original/file-20180530-120487-xxs2ss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Missouri Gov. Eric Greitens, before he resigned amid scandals</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Missouri-Governor/9a8f268c9fe240978eab65b72d8dbc6e/57/0">AP Photo/Jeff Roberson</a></span></figcaption></figure><p><a href="http://time.com/5299261/missouri-governor-eric-greitens-resign-office/">Eric Greitens has resigned</a>, finally. The former Missouri governor’s sex scandal didn’t force him to step down, but rather allegations that “dark money” improperly financed his winning gubernatorial bid.</p>
<p>During the years I’ve spent <a href="https://cap-press.com/books/isbn/9781632847263/Corporate-Citizen">writing about the topic</a>, I’ve seen an uptick in political dark money. As a result, it’s getting harder for voters to identify exactly who is trying to influence their vote.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1001601160527085568"}"></div></p>
<h2>What’s dark money?</h2>
<p><a href="https://www.opensecrets.org/dark-money/basics">Dark money</a> is political cash from a concealed source. This anonymity often happens because a donor’s political money passes through a nonprofit on its way to support a candidate. Dark money is the opposite of the transparent political spending that happens when donors openly support political action committees, political parties and candidate campaigns.</p>
<p>Investigative journalist <a href="https://sunlightfoundation.com/2010/10/18/daily-disclosures-10/">Bill Allison</a> coined the term when he worked at the Sunlight Foundation in 2010. It quickly entered the political lexicon, partly because of a best-selling book on the topic by The New Yorker’s <a href="https://www.penguinrandomhouse.com/books/215462/dark-money-by-jane-mayer/9780307947901/">Jane Mayer</a>. </p>
<p>Typically, political money goes dark when it is funneled through <a href="https://theconversation.com/hillary-clinton-is-starting-a-social-welfare-group-what-does-that-mean-78221">social welfare organizations</a> – commonly known as 501(c)(4) nonprofits because of the relevant section of the tax code – or trade associations that are also called <a href="https://www.irs.gov/charities-non-profits/other-non-profits/business-leagues">501(c)(6) nonprofits</a>. </p>
<p>Political money can also hide when it is obscured through <a href="https://www.opensecrets.org/dark-money/basics">limited liability companies</a>, or LLCs. In some cases, these companies are created <a href="https://www.theatlantic.com/politics/archive/2013/12/theres-no-way-to-follow-the-money/282394/">solely to obscure the source</a> of political spending.</p>
<h2>The Greitens case</h2>
<p>The obscurity inherent in all dark money transactions makes them hard to follow and to keep track when they get politicians into hot water.</p>
<p>For instance, <a href="https://www.yahoo.com/news/stunning-rise-fall-eric-greitens-233305491.html">Greitens announced he would resign</a> within hours of a judge ordering that the real identities of the backers of a social welfare group called A New Missouri Inc. be made public. His exit came amid <a href="https://www.cnn.com/2018/05/03/politics/missouri-lawmakers-special-session-greitens-impeachment/index.html">impeachment proceeedings</a> related to the alleged misuse of <a href="https://www.cnn.com/2018/05/30/politics/eric-greitens-missouri-felony-charge-dropped/index.html">another nonprofit’s donor list</a>, for which he faced a felony charge.</p>
<p><a href="http://www.kansascity.com/news/politics-government/article212102994.html">A New Missouri</a>, which the governor’s close political advisers created in February 2017, operates out of the same building as his campaign committee. There are some people who work for both entities, according to the Kansas City Star.</p>
<p>All told, the Greitens campaign may have benefited from <a href="http://news.stlpublicradio.org/post/former-aide-says-greitens-relied-charity-donor-list-dark-money-kick-start-campaign#stream/0">US$6 million in dark money</a> during his 2016 election, one of his former aides has estimated.</p>
<p>Investigators are trying to learn if any of the donors to the secretive groups supporting Greitens <a href="http://www.ozarksfirst.com/news/missouri-judge-rules-greitens-committees-must-turn-over-supoenaed-documents/1206365413">were foreigners</a>. That would <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2864436">violate federal laws</a>, which only allow Americans to finance political activities.</p>
<p><a href="https://www.cnn.com/2018/05/29/politics/eric-greitens-missouri-governor/index.html">Greitens has admitted no wrongdoing</a>, insisting he had “not broken any laws, nor committed any offense worthy of this treatment” despite acknowledging that his behavior had not been “perfect.”</p>
<h2>Federal and state laws</h2>
<p>The governor’s claim of innocence may not be that far-fetched.</p>
<p>Federal law actually permits the use of dark money in federal elections. Some politicians and political operatives prefer undisclosed spending because the <a href="https://www.law.cornell.edu/uscode/text/26/6103">IRS typically keeps nonprofit taxpayer information confidential</a> and the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1833484">Federal Election Commission’s rules don’t require disclosure either</a>. If a political spender had spent the same funds through a PAC instead of a nonprofit, then the money would be fully reportable. </p>
<p>Political spenders that <a href="https://www.fec.gov/help-candidates-and-committees/making-disbursements-pac/independent-expenditures-nonconnected-pac/">spend more than $200 on independent expenditures</a> or put <a href="https://www.fec.gov/help-candidates-and-committees/making-disbursements-ssf-or-connected-organization/making-electioneering-communications/">more than $10,000 into ads known as “electioneering communications”</a> must report these outlays to the FEC every electoral cycle. But because that agency does not require every entity that spends money influencing elections to name their donors, political money can legally remain in the “dark.”</p>
<p>Meanwhile, <a href="http://www.ncsl.org/research/elections-and-campaigns/election-administration-at-state-and-local-levels.aspx">each state</a> has its own political spending disclosure rules. To get a sense of how good or bad your state’s campaign finance disclosure is, you can see how <a href="https://www.followthemoney.org/research/institute-reports/scorecard-essential-disclosure-requirements-for-contributions-to-state-campaigns-2016">the National Institute on Money in Politics graded them</a> a few years back.</p>
<h2>A growing quandary</h2>
<p>The surge in dark money is a negative development because it thwarts both democratic accountability and responsibility within corporations, which are suspected as being the sources of dark money without informing shareholders that corporate money is being spent on politics. Moreover, dark money can be a perfect cover for illegal foreign spending in American elections. Not everyone agrees with me. <a href="http://prospect.org/article/defense-dark-money">Others</a> find anonymous political spending appealing. </p>
<p>Since the Supreme Court’s 2010 Citizens United v. FEC ruling, which deemed political spending limits on businesses and unions to be unconstitutional, an estimated <a href="https://www.opensecrets.org/outsidespending/nonprof_summ.php">$800 million in dark money has been spent in federal elections</a>, according to the Center for Responsive Politics’ Open Secrets database. Based on what I learned while writing my book “<a href="https://cap-press.com/books/isbn/9781632847263/Corporate-Citizen">Corporate Citizen? An Argument for the Separation of Corporation and State</a>,” I would not be surprised if the total were to hit $1 billion by the time voters cast their ballots in the 2018 mid-term elections.</p>
<p>And the use of nonprofits to hide political slush funds is only growing. A recent report from <a href="https://www.brennancenter.org/publication/elected-officials-secret-cash">the Brennan Center</a>, a think tank housed at the New York University Law School, found that at least two presidents, seven governors – including Greitens – and several mayors have established nonprofits that let them raise unlimited, anonymous funds for political spending while in office.</p>
<h2>What some states and Congress are doing</h2>
<p>Some states have taken steps to diminish the role of dark money in state elections.</p>
<p>California enacted the <a href="http://www.sacbee.com/news/politics-government/capitol-alert/article177659771.html">California Disclose Act</a> in 2017 to improve disclosure. Maryland has a requirement that corporations tell shareholders about their political spending. </p>
<p>At the same time, some states have eased the flow of dark money. For example, <a href="http://www.governing.com/topics/politics/gov-campaign-finance-arizona-tempe-denver.html">Arizona</a> passed a law preventing its cities from fighting dark money, and <a href="https://docs.legis.wisconsin.gov/2015/proposals/ab387">Wisconsin</a> relaxed its campaign finance laws in 2015.</p>
<p>And <a href="http://time.com/4922542/democrats-citizen-united/">Congress has done nothing</a> to improve federal disclosures in elections. This leaves voters in the dark as they choose among candidates in the midterm elections. Unless Missouri tightens up its disclosure rules, the state’s voters may elect their next governor without knowing who is actually supporting the candidates on the ballot.</p><img src="https://counter.theconversation.com/content/90427/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ciara C Torres-Spelliscy is affiliated with the Brennan Center for Justice at NYU Law where she is a fellow. </span></em></p>Embattled Gov. Eric Greitens resigned over allegations tied to political contributions from concealed sources.Ciara Torres-Spelliscy, Leroy Highbaugh Sr. Research Chair and Professor of Law, Stetson University Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/846452017-09-27T00:54:26Z2017-09-27T00:54:26ZThe surprising connection between ‘take a knee’ protests and Citizens United<figure><img src="https://images.theconversation.com/files/187646/original/file-20170926-17379-1nbcljc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Dallas Cowboys owner Jerry Jones joined his team in taking a knee before a game on Sept. 25.</span> <span class="attribution"><span class="source">AP Photo/Matt York</span></span></figcaption></figure><p>Citizens United, the Supreme Court ruling that some fear <a href="http://time.com/4922542/democrats-citizen-united/">is destroying American democracy</a>, may also be showing us how to heal it. </p>
<p>The most recent example of this is the reaction to President Donald Trump’s comments suggesting that sports owners <a href="https://www.nytimes.com/2017/09/24/sports/nfl-trump-anthem-protests.html">should fire players</a> who kneel during the national anthem. As the president does so often, he placed business leaders in the difficult position of deciding whether to speak out at the risk of alienating customers and courting further controversy. </p>
<p>In this case, many league officials and owners chose to do just that, <a href="https://twitter.com/NFLprguy/status/911580084141772801/photo/1">labeling</a> Trump’s words “divisive” and <a href="https://twitter.com/WarriorsPR/status/911671456928382976/photo/1">defending their players’ right</a> to “express themselves freely on matters important to them.” <a href="https://www.washingtonpost.com/news/early-lead/wp/2017/09/25/cowboys-players-take-a-knee-with-owner-jerry-jones-before-standing-for-anthem/?utm_term=.d00ae10138dc">Some owners</a> “took a knee” alongside their players. </p>
<p>While corporate speech is often assumed to favor only conservative causes, my research on attorney advertising reveals the extent to which free speech rights for companies <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2445771">also advances</a> causes important to liberals. </p>
<p>I would argue that Citizens United – a Supreme Court opinion that has produced bitterly partisan reactions – ironically offers a pluralistic vision of corporate speech as well as a <a href="https://scholar.google.com/scholar_case?case=6233137937069871624">full-throated defense</a> of the kind of political speech <a href="https://theconversation.com/how-corporate-ceos-found-their-political-voice-83127">we are now witnessing</a> from business leaders. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/187671/original/file-20170926-10570-1sisnqg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/187671/original/file-20170926-10570-1sisnqg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/187671/original/file-20170926-10570-1sisnqg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/187671/original/file-20170926-10570-1sisnqg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/187671/original/file-20170926-10570-1sisnqg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/187671/original/file-20170926-10570-1sisnqg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/187671/original/file-20170926-10570-1sisnqg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Merck CEO Kenneth Frazier, center, resigned from Trump’s manufacturing council because of the president’s muted reaction to the violence in Charlottesville, Va. The council soon disbanded after that.</span>
<span class="attribution"><span class="source">AP Photo/Evan Vucci, File</span></span>
</figcaption>
</figure>
<h2>Speaking out in the age of Trump</h2>
<p>Whether to speak out when Trump takes a position that is at odds with the rights of their employees or their own or company’s values has become a fundamental dilemma for many business leaders in the Trump era. </p>
<p>Many have done so on <a href="http://fortune.com/2017/08/14/ken-frazier-trump-charlottesville-response/">Charlottesville</a>, <a href="http://www.telegraph.co.uk/news/2017/06/01/elon-musk-quits-donald-trumps-advisory-councils-paris-accord/">climate change</a>, <a href="https://twitter.com/sundarpichai/status/890247543686397952">transgender service in the military</a> and <a href="https://www.washingtonpost.com/news/the-switch/wp/2017/09/06/amazon-and-microsoft-are-supporting-a-15-state-lawsuit-to-protect-daca/?utm_term=.988cbc9f1414">Deferred Action for Childhood Arrivals</a>. Others have <a href="https://www.newyorker.com/news/john-cassidy/corporate-americas-awkward-embrace-of-trump-will-continue">stayed silent</a>, seeming to support the notion that inserting themselves into political controversies would be to step out of bounds. </p>
<p>In this view, business should be separate from politics, and corporations should leave political discourse to private citizens. But for better or worse, our system protects business leaders speaking up. And the Supreme Court’s ruling in Citizens United describes why it’s so important. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/187668/original/file-20170926-10570-6opbe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/187668/original/file-20170926-10570-6opbe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/187668/original/file-20170926-10570-6opbe0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/187668/original/file-20170926-10570-6opbe0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/187668/original/file-20170926-10570-6opbe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/187668/original/file-20170926-10570-6opbe0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/187668/original/file-20170926-10570-6opbe0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">They may not be people, but they’re made up of them.</span>
<span class="attribution"><span class="source">AP Photo/Toby Talbot</span></span>
</figcaption>
</figure>
<h2>Citizens United, the left’s bete noir</h2>
<p>In 2010, <a href="https://scholar.google.com/scholar_case?case=6233137937069871624">Citizens United v. Federal Election Commission</a> overturned a law that limited corporate finance of certain political ads on First Amendment grounds. The reaction from liberals and those who favor limits on campaign finance was <a href="http://www.nybooks.com/articles/2010/02/25/the-devastating-decision/">fierce</a>.</p>
<p>President Barack Obama famously <a href="https://www.youtube.com/watch?v=deGg41IiWwU">criticized</a> the opinion during a <a href="http://abcnews.go.com/Politics/State_of_the_Union/state-of-the-union-2010-president-obama-speech-transcript/story?id=9678572">State of the Union address</a>, with the justices who issued the ruling sitting a few feet away:</p>
<blockquote>
<p>“I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people.”</p>
</blockquote>
<p>According to a Time magazine survey of law professors, the opinion ranks among <a href="http://time.com/4056051/worst-supreme-court-decisions/">the worst since 1960</a>.</p>
<p>And yet, like any political lightning rod, Citizens United is both less and more than it seems. </p>
<p>Constitutional scholar Justin Levitt <a href="https://www.jstor.org/stable/41308528?seq=1#page_scan_tab_contents">characterized</a> the opinion as an incremental change from previous law, which offered corporations no shortage of options for political influence. <a href="https://doi.org/10.1111/j.1740-1461.2012.01265.x">Another study</a> found that companies spent more on politics after Citizens United but it ultimately hurt shareholders – it was essentially a form of corporate waste. Spending additional corporate dollars on campaigns awash in advertising may not produce much of <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjNg9CAssPWAhVBXWMKHVp8D_8QFggmMAA&url=http%3A%2F%2Fpeople.umass.edu%2Fschaffne%2Flaraja_schaffner_spendingbans.pdf&usg=AFQjCNGCK5ryfKuvJ9A-bvaLmbV7efoUyA">a return</a> on investment.</p>
<p>Beyond its legal impact, Citizens United offered a vision of democracy that embraces the unique and important role that business leaders play in political discourse. In other words, exactly what we’ve seen when business leaders stand up to Trump.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/E2h8ujX6T0A?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<h2>Business leaders bridging divides</h2>
<p>Citizens United stands in part for the idea that the First Amendment provides strong protection for political speech, even if it originates from a company. <a href="https://www.youtube.com/watch?v=E2h8ujX6T0A">Corporations may not be people</a>, but, to paraphrase the movie “Soylent Green,” they are <a href="https://vimeo.com/193955387">made of people</a>. </p>
<p>In this view, corporations are groups of people on par with labor unions or nonprofits, and their joint viewpoints are deserving of protection.</p>
<p>At a time of deep partisan division, business leaders may be the rare voice deemed credible across the political spectrum. Small businesses are among the <a href="http://news.gallup.com/poll/212840/americans-confidence-institutions-edges.aspx">few remaining institutions</a> that inspire a high level of confidence from both Republicans and Democrats. Tech companies also still enjoy <a href="https://www.nbcnews.com/meet-the-press/poll-little-confidence-major-american-institutions-n697931">high levels</a> of trust. Importantly, among those who are losing confidence in the “system,” business is seen as <a href="https://www.edelman.com/global-results/">the most trusted</a> institution.</p>
<p>To this, one might respond, why ruin a good thing? Perhaps business leaders should lie low and preserve their reputation. But it is a mistake to assume that any statements in opposition to Trump are themselves divisive. </p>
<p>In this regard, even diluted corporate rhetoric offers the comparative benefit of articulating a few things that Americans have in common. After Charlottesville, the CEO of Campbell Soup – a symbol of mainstream values if there ever was one – <a href="https://www.campbellsoupcompany.com/newsroom/press-releases/campbell-ceo-resigns-from-presidents-manufacturing-jobs-initiative/">issued a statement</a> that “racism and murder are unequivocally reprehensible.” It may not be revolutionary, but at least it’s a point upon which virtually every American can agree. </p>
<p>Citizens United also argued that corporations have a unique viewpoint in the <a href="http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=3484&context=caselrev">marketplace of ideas</a>. In this conception of speech, corporate voices are worth protecting because voters find them valuable or important. As the Supreme Court <a href="https://scholar.google.com/scholar_case?case=6233137937069871624">explained</a>:</p>
<blockquote>
<p>“On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials.” </p>
</blockquote>
<p>In this vein, corporations represent a credible source of information and context on policy matters.</p>
<p>The Trump administration’s decision to terminate DACA is often invoked as a moral issue. However, in a lawsuit against the administration, tech leaders explained that it was also a business issue, describing how its termination will affect their ability to <a href="https://www.washingtonpost.com/news/the-switch/wp/2017/09/06/amazon-and-microsoft-are-supporting-a-15-state-lawsuit-to-protect-daca/?utm_term=.fb7cf1118ac6">recruit and retain top talent</a>. Likewise, when NFL owners and coaches defend their players, it’s an opportunity to provide context for how the kneeling controversy relates to racial justice.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/187667/original/file-20170926-31238-c81frg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/187667/original/file-20170926-31238-c81frg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/187667/original/file-20170926-31238-c81frg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/187667/original/file-20170926-31238-c81frg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/187667/original/file-20170926-31238-c81frg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/187667/original/file-20170926-31238-c81frg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/187667/original/file-20170926-31238-c81frg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Colin Kaepernick (7) began taking a knee during the national anthem last year to protest police brutality.</span>
<span class="attribution"><span class="source">Daniel Gluskoter/AP Images for Panini</span></span>
</figcaption>
</figure>
<h2>For business leaders, it’s personal</h2>
<p>To be sure, Citizens United has had some of the negative impact liberals feared. In particular, <a href="http://www.journals.uchicago.edu/doi/abs/10.1086/685691">one study</a> estimated that corporate spending following Citizens United measurably improved Republican prospects in state legislatures. </p>
<p>When corporations have the option to engage in unlimited spending, it gives them a <a href="http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/gslr27&section=43">louder voice</a> than others in the electoral process.</p>
<p>Nevertheless, the kind of statements we’ve heard from NFL and NBA team owners offers a counterpoint to the kind of corporate speech most feared by commentators following Citizens United – that of faceless corporations pouring money into elections in service of their “greedy ends.” Instead, these statements have an intensely personal character. They show leaders sharing their own personal experiences and how those experiences are reflected in the organizations they run.</p>
<p>When NFL team owner Shahid Khan <a href="https://www.washingtonpost.com/news/sports/wp/2017/09/24/shahid-khan-the-jaguars-owner-who-stood-with-his-team-has-long-espoused-the-american-dream/?utm_term=.40c47b159691">linked arms</a> with his players during the national anthem before a game, it sent a symbolic message to his players – and to everyone watching – about his vision of an inclusive America that honors diversity “in many forms – race, faith, our views and our goals.” </p>
<p>It may not be the kind of corporate speech that we imagined. But it’s exactly what we need.</p><img src="https://counter.theconversation.com/content/84645/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett made a contribution to the Hillary Clinton campaign.</span></em></p>Team owners’ defense of their players ‘taking a knee’ during the national anthem shows the vital role business leaders play in political discourse – one championed by Citizens United.Elizabeth C. Tippett, Assistant Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/714602017-01-20T19:03:14Z2017-01-20T19:03:14ZThe art of protesting during Donald Trump’s presidency<p>With the new administration beginning, many people might want to know how to <a href="https://www.theguardian.com/world/2017/jan/19/alternative-inauguration-party-saranac-lake">resist</a> it. The inauguration week includes many protests against Donald Trump’s values – from <a href="https://www.womensmarch.com/">the Women’s March on Washington</a> to the <a href="http://hyperallergic.com/352328/we-need-to-start-now-a-personal-case-for-the-art-strike/">#J20 Art Strike</a>. What should we aim for as we head into protests?</p>
<p>As a <a href="https://www.degruyter.com/downloadpdf/j/ebce.2016.6.issue-3-4/ebce-2016-0020/ebce-2016-0020.xml">reflective citizen</a> and a <a href="https://punctumbooks.com/titles/solar-calendar/">practitioner of philosophy</a>, I am hopeful about the power of protest. I see our time as challenging us to ensure that protests <a href="http://hyperallergic.com/343410/reconsidering-the-aesthetics-of-protest/">take democratic form</a>. When we do, protest rejuvenates democracy.</p>
<h2>A ‘hollowing out’</h2>
<p>On the face of it, our democratic values are in trouble. In new work on democracy, the political theorist Wendy Brown <a href="https://mitpress.mit.edu/books/undoing-demos">argues</a> that neoliberalism is “hollowing out” democracy without our realizing it, like rot inside a tree.</p>
<p>Neoliberalism is a form of thinking in which human values are reduced to capitalist market values, especially financial ones. Brown develops the concept from Foucault’s <a href="http://www.palgrave.com/gb/book/9781403986559">lectures</a> on the governance of human populations. Foucault asks how people are managed as a people. His answer is that a new way of thinking sets in from the government on down to individual lives.</p>
<p>For example, in <a href="http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/">Citizens United</a>, Supreme Court Justice Anthony Kennedy characterized political speech as a “marketplace” of ideas. This is odd because reasoning about the public good is not something we simply consume. Reasoning doesn’t work like that. You have to ask what makes sense, not whether you simply want it.</p>
<p>Brown also discusses how students and families often value education by its “return on investment.” This displaces deeper values such as growing up or becoming a good human being and an active citizen. Learning to govern our lives through shared rule is replaced by outperforming other competitive individuals. </p>
<p>In examples such as these, Brown shows how our capacity to work together is undermined in the way that we think. From the macro level of constitutional interpretation to the micro level of getting an education, neoliberalism “hollows out” our ability to think collectively about things.</p>
<h2>Saying ‘we’ and meaning it</h2>
<p>Thankfully, the ideas in the concept of protest can address this threat. </p>
<p>“Protest” has a Latin root that means to bear witness publicly. The idea is that in protest, some of us step forth and share something we think should be considered by all.</p>
<p>“Democracy” has a Greek root that means that the people have the power to construct society. We interpret this in the United States as rule by and for the people. The idea is that power is shared between us. </p>
<p>Now there can be no sharing when we can’t say “we” and mean it. Someone is being left out.</p>
<p>Furthermore, the minute we can say “we” and mean it, we affirm our shared volition. When we can attach our wills to something and affirm it, we share (some) power. </p>
<p>Thus, sharing power between people demands that people can say “we” sincerely and without reservation, and that they have not <a href="https://global.oup.com/academic/product/adaptive-preferences-and-womens-empowerment-9780199777877?cc=us&lang=en&#">succumbed to oppression</a> in the moment of speaking.</p>
<p>Democratic protest is at heart, I think, the act of finding how we can arrive at a point to say “we” and mean it. “How can we?!” we say in protest. But we also say, “How can we?” (notice the punctuation). “We the people” isn’t just an assumption of democracy, it is democracy’s goal and ideal.</p>
<h2>Clearing a space for each other</h2>
<p>If the main threat to democracy today is the loss of collective thinking, then protest is democracy’s guardian. But protesters must develop the idea of sharing power. Where can we turn to do this?</p>
<p>Today, some of the most exciting work on sharing is found in what is called “socially engaged art.” Artists such as <a href="http://chloebass.com/">Chloë Bass</a>, <a href="http://carolinewoolard.com/">Caroline Woolard</a> and <a href="http://www.michaelrakowitz.com/">Michael Rakowitz</a> have created ways of sharing power and of protesting that reinvigorate community and democracy.</p>
<p>Rakowitz urged that the color orange be <a href="http://hyperallergic.com/200554/an-artist-embarks-on-an-impossible-project-for-tamir-rice/">removed</a> from the city of Cleveland to protest the killing of Tamir Rice after he’d removed the orange safety tip from his toy gun. </p>
<p>Woolard has formed <a href="http://tradeschool.coop/story/">barter schools for knowledge</a> in a “solidarity economy” where knowledge can be shared even when you cannot afford university.</p>
<p>Bass has given people the opportunity to better understand <a href="http://chloebass.com/work/the-book-of-everyday-instruction">what living with others means</a> through a series of interactive exercises. She gets at underlying fears through rituals people can trust.</p>
<p>These aesthetic acts are aimed at bringing people together across boundaries so that we are able to say “we.” They provide opportunities to work through trauma, impotence or class inequality and exclusion. They open up communication.</p>
<p>Protesters can learn from socially engaged art. Why shout at the police when they aren’t listening? It’s more imaginative to organize different ways to hear each other.</p><img src="https://counter.theconversation.com/content/71460/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeremy David Bendik-Keymer is co-organizer of a community based group in Cleveland Heights, OH called the Moral Inquiries which discusses civics and ethics bi-weekly.</span></em></p>On the face of it, our democratic values are in trouble. But we should be hopeful about the power of protest.Jeremy Bendik-Keymer, Beamer-Schneider Professor in Ethics, Case Western Reserve University, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547212016-02-15T03:31:47Z2016-02-15T03:31:47ZJustice Antonin Scalia: more quotable than influential<p>Justice Antonin Scalia will be remembered for his brilliant intellect, his acerbic wit and his insistence on interpreting law by reference to text and history. </p>
<p>He was long the intellectual leader of the conservative wing of the United States Supreme Court. However, he often seemed more interested in being a leader than in having followers. He was no coalition builder, and as evidenced by his losses in the court’s major decisions last term, his jurisprudence is, in my view, likely to have limited impact.</p>
<p>As someone who had the privilege of clerking on the Supreme Court (for Justice John Paul Stevens) during Justice Scalia’s tenure, I will continue to enjoy my memories of Justice Scalia’s dynamic interaction with clerks. As a professor of constitutional law, I will continue to study and to teach Justice Scalia’s incisive opinions. </p>
<p>When it comes to learning how courts actually interpret the law, though, the majority opinions on which my class focuses are unlikely to be those written by Justice Scalia. </p>
<h2>Champion of new conservatism</h2>
<p>Justice Scalia was appointed to the court by President Ronald Reagan in 1986 at a pivotal time for the conservative movement. </p>
<p>Throughout the 1960s and 1970s, judicial conservativism generally meant adherence to precedent and reluctance to invalidate legislative acts. However, the conservative movement of the 1980s sought instead to undo prior liberal decisions and to limit the power of the national government by rigorously scrutinizing federal statutes.</p>
<p>Justice Scalia served as a perfect champion of these new conservative ideals. He embraced <a href="http://www.heritage.org/constitution/#!http://www1.heritage.org/introessays/3/the-originalist-perspective">“originalism,”</a> the idea that insists that the Constitution must be interpreted by reference to its meaning at the time of its adoption. This approach rejects the idea that new rights may emerge over time. </p>
<p>He also endorsed <a href="http://www.virginialawreview.org/sites/virginialawreview.org/files/347.pdf">textualism</a>, which interprets statutes by focusing solely on their language, rather than the legislature’s overall purpose in enacting them. By refusing to attend to the purpose of legislation, textualism imposes a substantial burden on the legislature to draft complex statutes with exacting precision.</p>
<p>These interpretive swords of originalism and textualism allowed Justice Scalia both to attack liberal precedents that had strayed from what he understood as the Constitution’s historic meaning and to limit the scope of governmental power. </p>
<p>Justice Scalia swung his interpretive swords with notable gusto, and his style and substance achieved some notable victories. His colleagues, as well as advocates before the court, knew that references to legislative history, committee reports or other indications of legislative purpose would draw his ire. </p>
<p>Singlehandedly, he changed the way in which statutes were discussed in the United States Supreme Court.</p>
<p>Beginning in the 1990s, a new conservative majority on the Supreme Court limited the power of the national government, striking down or narrowing important federal legislation such as the <a href="https://www.law.cornell.edu/uscode/text/42/chapter-136/subchapter-III">Violence Against Women Act</a>, <a href="http://www.eeoc.gov/laws/statutes/adea.cfm">the Age Discrimination in Employment Act</a> and the <a href="http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf">Voting Rights Act</a>. </p>
<p>Writing for the court in <a href="https://www.oyez.org/cases/2007/07-290">District of Columbia v. Heller</a> in 2008, Justice Scalia relied on the original meaning of the Constitution in finding a Second Amendment right for an individual to possess a handgun. </p>
<p>In the <a href="https://www.oyez.org/cases/2008/08-205">Citizens United</a> case in 2010, the court upended decades of precedent to restrict Congress’ ability to regulate the financing of political campaigns.</p>
<h2>Limited victories</h2>
<p>But Scalia’s victories were limited. His style did not always ingratiate him with potential allies on the court. He did not mince words, and he attacked the opinions of other justices, liberal and conservative alike, with unusual ferocity.</p>
<p>In <a href="https://www.law.cornell.edu/supremecourt/text/492/">Webster v. Reproductive Health Services</a> in 1989, three years after joining the court, Justice Scalia famously attacked Justice Sandra Day O'Connor. In this important abortion case, Justice Scalia criticized Justice O’Connor’s opinion as “irrational” and argued that a particular assertion of hers “cannot be taken seriously.” </p>
<p>Three years later, Justice Scalia ended up on the losing side of <a href="https://www.law.cornell.edu/supct/html/91-744.ZS.html">Planned Parenthood v. Casey</a>, as Justice O’Connor coauthored an opinion for a five-justice majority reaffirming the right to an abortion. </p>
<p>In 2015, finding himself in dissent in the year’s most significant cases, Justice Scalia’s vitriol reached new heights. </p>
<p>He derided the majority opinion of Chief Justice John Roberts, which upheld certain subsidies under the Affordable Care Act or “Obamacare.” Referring to this and a previous opinion by the chief justice upholding the ACA, Justice Scalia <a href="https://theconversation.com/obamacare-victory-shows-failure-of-scalias-conservative-revolution-43890">sniped</a>,</p>
<blockquote>
<p>We should start calling this law SCOTUS care.</p>
</blockquote>
<p>Attacking the sometimes lofty rhetoric of the majority opinion by Justice Anthony Kennedy in the same-sex marriage case, Justice Scalia <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">wrote</a> that if he ever joined an opinion with that kind of language, “I would hide my head in a bag.” </p>
<p>And these were his comments directed at justices who generally voted with him.</p>
<p>While Justice Scalia’s caustic style may have been off-putting to some justices, what was more significant was that his interpretive approach failed to win over his colleagues. The last term of the court made that failure clear.</p>
<p>In <a href="http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf">King v. Burwell</a>, a strict reading of the text of the Affordable Care Act would seem to have authorized federal subsidies only for health care exchanges established by states, not for those established by the federal government in states that refused to create exchanges. </p>
<p>If textualism had prevailed, the scope of federal power would have been limited, in this case by potentially gutting the ACA.</p>
<p>But Chief Justice Roberts instead applied traditional principles of statutory interpretation and looked to the overall purpose of the legislative scheme. </p>
<p>By a 6-3 vote, Scalia’s textualism lost, and the ACA won. </p>
<p>From the perspective of the six-justice majority, it made no sense to focus solely on the words of one section, instead of the larger goals of the legislation. In this approach, the court acts as Congress’ partner, not its censor.</p>
<h2>A mixed legacy</h2>
<p>Justice Scalia’s focus on beginning any interpretation with the text of a statute may endure, but his rejection of other interpretive guides never found a lasting home on the court.</p>
<p>Even in his lifetime, his brand of textualism could not earn majority support.</p>
<p>He changed how advocates and judges talk about statutes, but not how they ultimately interpret them.</p>
<p>His attempt to reorient interpretation of the Constitution similarly failed to achieve lasting success.</p>
<p><a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>, for example, the case affirming a right to same-sex marriage, constituted a dramatic repudiation of Justice Scalia’s originalism. </p>
<p>For Justice Scalia, the disposition was easy: </p>
<blockquote>
<p>When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.</p>
</blockquote>
<p>But for the five-justice majority, the rights of loving couples to marry today could not be resolved simply by reference to the views of people who lived 150 years ago. </p>
<p>Contrary to Justice Scalia’s originalism, Justice Kennedy’s majority opinion understood the Constitution as entrusting to </p>
<blockquote>
<p>future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.</p>
</blockquote>
<p>The idea of a “living Constitution,” always anathema to Justice Scalia, prevailed.</p>
<p>Justice Scalia’s opinions, full of erudition, wit, and occasional vitriol, will long be quoted and will fill the pages of legal textbooks. But the memorable opinions will largely be dissents. </p>
<p>His lasting influence will be found in admirers off the court, not in adherents on the bench. He was the champion of a movement that achieved many of its goals but did not succeed in fundamentally reshaping the law in the United States. </p>
<p>He will go down in history, in my view, as one of the most quotable justices, but not one with the deepest impact.</p><img src="https://counter.theconversation.com/content/54721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Schapiro does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The long-serving justice changed how judges talk about statutes, but not, argues one law professor, how they ultimately interpret them.Robert Schapiro, Dean and Professor of Law , Emory UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/451472015-07-29T10:21:17Z2015-07-29T10:21:17ZWhat the Scott Walker fundraising controversy means for 2016<p>The Wisconsin Supreme Court <a href="http://www.nytimes.com/politics/first-draft/2015/07/16/scott-walker-2012-campaign-inquiry-ended-by-wisconsin-court/">dismissed</a> a criminal investigation on July 16 that threatened Wisconsin Governor Scott Walker’s political ambitions. </p>
<p>The court’s ruling spares Walker’s <a href="https://www.scottwalker.com/">presidential campaign</a> from what could have been a devastating political scandal. In the process, the case demonstrates the extent to which state and federal courts now permit candidates to coordinate their campaign activity with nominally “independent” political advocacy groups and super PACs.</p>
<h2>A two-tiered system of campaign finance</h2>
<p>Since the Supreme Court’s Citizens United <a href="http://www.supremecourt.gov/opinions/09pdf/08-205.pdf">decision</a> in 2010, political candidates have operated in a two-tiered system of campaign finance. </p>
<p>Under the Federal Election Campaign Act, an individual donor may contribute only a maximum of US$2,700 to a candidate’s campaign in <a href="http://www.fec.gov/pages/brochures/contriblimitschart.htm">federal elections</a>. Many states impose similar limits on contributions to <a href="http://www.ncsl.org/Portals/1/documents/legismgt/elect/ContributionLimitstoCandidates_2015-2016.pdf">state campaigns</a>. </p>
<p>But since Citizens United, private donors may contribute an unlimited amount to “independent” <a href="http://abcnews.go.com/Politics/OTUS/super-pac-short-history/story?id=16960267">super PACs</a> and other outside groups that support state and federal candidates.</p>
<p>Freed of contribution limits, outside groups have raised and spent hundreds of millions of dollars on federal and state campaigns <a href="https://www.opensecrets.org/outsidespending/summ.php?chrt=V&type=S">across the country</a>. </p>
<p>In 2012 alone, outside groups spent about <a href="http://www.cbsnews.com/news/outside-spending-on-2012-elections-reaches-1-billion/">$1 billion</a>. </p>
<h2>The Scott Walker criminal investigation</h2>
<p>While Citizens United created a huge new pool of campaign money, it left a critical question unresolved: At what point do candidates cross the line into illegal coordination with “independent” groups?</p>
<p>The Walker case shows just how far candidates can go in working with PACs. </p>
<p>After winning the governor’s office in 2010, Walker unveiled a <a href="http://www.jsonline.com/news/statepolitics/supreme-court-to-rule-thursday-on-union-law-voter-id-b99321110z1-269292661.html">controversial plan</a> to sharply restrict collective bargaining by public employees. Walker’s agenda divided the state so profoundly that <a href="http://www.reuters.com/article/2011/03/13/us-wisconsin-protests-idUSTRE72B2AN20110313">100,000 people gathered</a> at the State Capitol in Madison to protest the governor’s policies.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/89863/original/image-20150728-7665-fbzdmu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/89863/original/image-20150728-7665-fbzdmu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/89863/original/image-20150728-7665-fbzdmu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/89863/original/image-20150728-7665-fbzdmu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/89863/original/image-20150728-7665-fbzdmu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/89863/original/image-20150728-7665-fbzdmu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/89863/original/image-20150728-7665-fbzdmu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protesters gather at the Wisconsin State Capitol for a rally to protest passage of Wisconsin’s Budget Repair Bill in 2011.</span>
</figcaption>
</figure>
<p>In 2012, Walker faced a gubernatorial <a href="http://www.nytimes.com/2012/06/06/us/politics/walker-survives-wisconsin-recall-effort.html">recall election</a>. To rally public support, the Walker campaign <a href="http://www.jsonline.com/news/statepolitics/walker-wanted-funds-sent-to-wisconsin-club-for-growth-b99336519z1-272364371.html">encouraged supporters</a> to donate to the <a href="http://wicfg.com/">Wisconsin Club for Growth</a> (WCFG), an independent issue advocacy group that supported Walker’s legislative agenda.</p>
<p>WCFG did not run advertisements expressly endorsing Walker. But the group did advocate on behalf of <a href="http://wicfg.com/issues/">policies</a> that Walker supported, such as smaller government and deregulation. </p>
<p>Walker <a href="http://www.nytimes.com/2012/06/06/us/politics/walker-survives-wisconsin-recall-effort.html">won</a> the recall election in 2012 and later won a <a href="http://www.jsonline.com/news/statepolitics/walkers-burkes-political-futures-hang-in-balance-with-vote-b99382151z1-281512301.html">second term</a> as governor in 2014. </p>
<p>In the meantime, in 2013, a group of county prosecutors in Wisconsin launched a criminal <a href="http://www.usatoday.com/story/news/politics/2014/06/19/scott-walker-prosecutors-criminal-probe/10891057/">investigation</a> into the Walker campaign’s relationship with WCFG and other issue advocacy organizations. The prosecutors suspected that Walker’s 2012 campaign had <a href="http://www.nytimes.com/2014/06/20/us/scott-walker-wisconsin-governor.html">violated state law</a> by coordinating its advertising strategy with the outside groups. </p>
<p>However, the investigation ended on July 16 2015, when the Wisconsin Supreme Court <a href="http://www.wsj.com/articles/wisconsin-court-ends-investigation-into-scott-walkers-recall-election-bid-1437062374">dismissed</a> the case against Walker. </p>
<p>In a 4–2 opinion, <a href="http://wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=144527">the court held</a> that the Walker campaign’s contacts with WCFG and similar organizations did not violate the law because the outside groups only engaged in issue advocacy and never expressly endorsed Walker’s candidacy. </p>
<p>The Wisconsin Supreme Court <a href="http://wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=144527">ruled</a> that “issue advocacy, whether coordinated or not, is beyond the reach” of campaign finance laws.</p>
<h2>What the Wisconsin case means for 2016</h2>
<p>The political implications of the Wisconsin case are significant.</p>
<p>The court’s dismissal of the WCFG investigation represents a crucial political <a href="http://www.politico.com/story/2015/07/scott-walker-campaign-finance-laws-no-violation-wisconsin-supreme-court-120220.html">victory</a> for Walker. It frees him from the specter of a political scandal that would likely have haunted his presidential campaign.</p>
<p>The case also demonstrates how narrowly the courts have defined the term “<a href="http://www.newyorker.com/news/news-desk/scott-walkers-wisconsin-and-the-end-of-campaign-finance-law">coordination</a>.” </p>
<p>Although it applies only to Wisconsin state elections, the Wisconsin Supreme Court’s ruling provides a striking example of how candidates can find ways to “legally” coordinate campaign activity with outside groups. </p>
<p>Many presidential candidates are already using <a href="http://www.washingtonpost.com/politics/here-are-the-secret-ways-super-pacs-and-campaigns-can-work-together/2015/07/06/bda78210-1539-11e5-89f3-61410da94eb1_story.html">similar strategies</a> to get around federal campaign finance laws. </p>
<p>For example, former Florida Governor Jeb Bush delayed the official announcement of his presidential campaign so he could continue to discuss campaign and fundraising strategies with Right to Rise, his <a href="http://www.washingtonpost.com/blogs/post-politics/wp/2015/03/17/top-republican-strategists-in-talks-to-join-jeb-bushs-super-pac/">super PAC</a>. </p>
<p>The tactic paid off. In the first six months of 2015, Right to Rise <a href="http://www.washingtonpost.com/politics/jeb-bush-and-allied-super-pac-raise-an-unprecedented-114-million-war-chest/2015/07/09/652e1206-2651-11e5-b72c-2b7d516e1e0e_story.html">raised $103 million</a>, a staggering total that far exceeded the $11 million raised by Bush’s “official” campaign committee. Indeed, Bush places so much importance on his super PAC that he has reportedly assigned <a href="http://www.washingtonpost.com/politics/jeb-bushs-man-in-hollywood/2015/06/12/febca268-0584-11e5-a428-c984eb077d4e_story.html">Mike Murphy</a>, one of his most trusted campaign advisers, to run Right to Rise. </p>
<p>Bush is not alone. <a href="http://www.nytimes.com/politics/first-draft/2015/07/02/super-pac-raises-15-6-million-for-hillary-clinton-campaign/">Hillary Clinton</a> and <a href="http://www.washingtonpost.com/politics/here-are-the-secret-ways-super-pacs-and-campaigns-can-work-together/2015/07/06/bda78210-1539-11e5-89f3-61410da94eb1_story.html">other major candidates</a> have made super PACs a key feature of their fundraising strategies. </p>
<p>Walker himself is among them. Pro-Walker super PACs have raised over <a href="https://www.washingtonpost.com/politics/inside-scott-walkers-20-million-push-to-get-ready-for-a-presidential-run/2015/06/22/f89cdac0-15d2-11e5-9ddc-e3353542100c_story.html">$20 million</a> and are led by some of Walker’s closest political advisers. </p>
<p>The bottom line is that super PACs and other outside groups are “independent” in name only. To a remarkable degree, super PACs have become an essential component of every serious presidential campaign. </p>
<p>Nevertheless, as the Wisconsin case demonstrates, the courts have thus far shown no interest in tackling the problem of blatant campaign coordination between candidates and outside groups. The inevitable result is that outside groups will loom larger than ever in the 2016 campaign.</p><img src="https://counter.theconversation.com/content/45147/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony J Gaughan is a registered Republican.</span></em></p>A court has dismissed a criminal investigation into Wisconsin Governor and presidential candidate Scott Walker. The decision will encourage closer relationships between candidates and PACs.Anthony J. Gaughan, Associate Professor of Law, Drake UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/437722015-07-09T10:20:12Z2015-07-09T10:20:12ZHouse meddling with SEC to block disclosure of political contributions<figure><img src="https://images.theconversation.com/files/86879/original/image-20150630-5849-1dr00hg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">House Republicans apparently want to keep us in the dark on where their money's coming from.</span> <span class="attribution"><span class="source">Blindfold Franklin via www.shutterstock.com</span></span></figcaption></figure><p>The House Committee on Appropriations recently <a href="http://appropriations.house.gov/news/documentsingle.aspx?DocumentID=394251">adopted</a> a budget for an assortment of financial agencies. Tucked inside the 150-plus pages of legislative prose is a provision that would deny the Securities and Exchange Commission (SEC) the funding needed to issue “any rule, regulation, or order regarding the disclosure of political contributions.” </p>
<p>The provision is an attempt to use the appropriations process to block the SEC from responding to <a href="http://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/">Citizens United</a>, the case that opened the floodgate of political spending by finding that corporate contributions were protected under the First Amendment. </p>
<p>The House adopted the same provision last year, only to see it die in the Senate. If it does so again, let’s hope that the Senate has the same killer instinct and does not let this change slip through during the process of negotiating a final budget with the House. </p>
<h2>Calls for reform</h2>
<p>What happens when the Appropriations Committee meddles in the SEC’s disclosure process? </p>
<p>Put aside for the moment the compelling case for why the SEC should act on the issue and require more disclosure. Many have already made this case, including Justice Anthony Kennedy in what amounted to a <a href="http://www.washingtonpost.com/opinions/disclosing-corporate-campaign-spending-makes-sense/2015/06/12/71c849b4-0f9f-11e5-a0fe-dccfea4653ee_story.html">command</a> in Citizens United to provide effective disclosure of contributions, the more than 1.2 million <a href="http://corpgov.law.harvard.edu/tag/citzens-united-v-fec/">supportive comments</a> on a <a href="http://www.sec.gov/rules/petitions/2014/petn4-637-2.pdf">petition</a> asking the SEC to adopt a rule in this area, and the recent salvo of letters calling for reform, including letters <a href="https://www.sec.gov/comments/4-637/4637-3105.pdf">from two former SEC chairs (and one former commissioner)</a>, <a href="http://carneycommunications.com/secletter/">144 business leaders, entrepreneurs, investors and philanthropists</a>, and more than <a href="https://www.sec.gov/comments/4-637/4637-3103.pdf">70 foundations</a>. </p>
<p>Let’s just focus on the immediate consequences of a committee of the House of Representatives using the appropriations process to micromanage the system of corporate disclosure administered by the SEC. </p>
<p>The ban on rules regulating the disclosure of political contributions was slipped into the appropriations bill with no serious public vetting. There were no hearings on the language, no erudite witnesses to critique the consequences. The SEC has not, apparently, commented publicly on the language. Instead, the Appropriations Committee was left to its own devices in fashioning the applicable requirements. The consequences were predictable. </p>
<p>For one thing, the <a href="http://appropriations.house.gov/uploadedfiles/bills-114hr-sc-ap-fy2016-fservices-subcommitteedraft.pdf">language</a> is over-broad and unnecessarily interferes with other areas of the securities laws. The provision does not apply only to political contributions made by public companies but to political contributions of any kind. As a result, the provision would presumably apply to ongoing efforts by the SEC to address the problem of “pay to play,” the practice of securities professionals making political contributions to the government officials with whom they work. </p>
<p>The legislation would also potentially interfere with efforts by the SEC to enforce the Foreign Corrupt Practices Act, a law that prohibits certain payments to foreign government officials. All of these areas could be defunded under the appropriations bill. </p>
<p>The language could even give companies a pass from the SEC on lying about corporate contributions to political campaigns. To the extent companies inaccurately disclose the nature or amount of the contributions, the SEC has the existing authority to sanction them for misleading investors. The commission typically does so by issuing an order setting out the violation and the consequences. </p>
<p>But the language in the appropriations bill would not only prohibit any rules regarding the disclosure of political contributions but also prohibits any orders. The prohibition on orders, therefore, presumably defunds enforcement efforts by the SEC of existing requirements applicable to political contributions. </p>
<h2>A blunt approach</h2>
<p>At the same time, the language also doesn’t really accomplish what the drafters apparently intended. </p>
<p>It is true that the SEC will not, under the legislation, be able to expend funds regarding the adoption of rules or the issuance of orders concerning political contributions. Nothing in the appropriations bill, however, prevents the staff of the SEC from using other, less formal mechanisms to require companies and others to disclose these contributions. </p>
<p>The staff has at its fingertips devices such as “no action” letters and interpretive releases that can influence the disclosure process. These are informal mechanisms that the staff sometimes uses to advise companies on their existing legal obligations. </p>
<p>In 2010, for example, the staff <a href="https://www.sec.gov/news/press/2010/2010-15.htm">issued</a> an interpretive release in an effort to clarify disclosure requirements with respect to climate change. The same could be done with respect to political contributions, even with the adoption of the language in the appropriations bill. </p>
<p>Contrast this blunt approach with the obligations imposed on the SEC. To adopt any rule on political contributions, the agency must draft the relevant provisions and submit them to the public for input. Any final rule will need to take into account the full panoply of viewpoints. In other words, the SEC can act only after becoming fully informed and hearing from all sides. </p>
<p>The appropriations process is no place for interference in the SEC’s oversight of the corporate disclosure process, including disclosure relating to political contributions. The language in the present bill should be removed and the matter left to the SEC to resolve.</p><img src="https://counter.theconversation.com/content/43772/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jay Brown is secretary of the Investor Advisory Committee at the Securities and Exchange Commission and an arbitrator for the Financial Industry Regulatory Authority.
</span></em></p>The House Appropriations Committee wants to stop the SEC from requiring the disclosure of political contributions. Here’s why that’s a bad idea.Jay Brown, Professor of Law, University of DenverLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/368722015-01-30T10:43:45Z2015-01-30T10:43:45ZDark money: Five years after Citizens United<figure><img src="https://images.theconversation.com/files/70487/original/image-20150129-22288-1j6bcdh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The new normal?</span> <span class="attribution"><span class="source">image via www.shutterstock.com</span></span></figcaption></figure><p>This week’s news brings an important “ah hah” moment. </p>
<p>The conservative billionaire brothers Charles and David Koch of Koch Industries and their political network of donors and opaque outside groups <a href="http://www.usatoday.com/story/news/politics/2015/01/26/koch-brothers-network-announces-889-million-budget-for-next-two-years/22363809/">are planning</a> to spend a stratospheric $889 million in the 2016 presidential and congressional elections. </p>
<p>That is more than double what they and their network spent in 2012, an amount so stupendous that it will be “<a href="http://www.nytimes.com/2015/01/27/us/politics/kochs-plan-to-spend-900-million-on-2016-campaign.html?ref=todayspaper">on par with the spending by (political) parties</a>”</p>
<p>What a way to mark the fifth anniversary of the Supreme Court’s Citizens United decision that paved the way for unlimited political spending by outside groups. </p>
<h2>It wasn’t always so</h2>
<p>There was a time and a place, far, far away, when Americans found such outsized political influence not only unseemly, it was actually illegal.</p>
<p>Consider the US$2.1 million that insurance mogul W Clement Stone gave to incumbent President Richard Nixon’s 1972 reelection campaign and to the Republican Party, then a record. That sum would be equal in today’s inflation-adjusted dollars to $11.9 million, underwhelming now compared to the unseemly sums of cash swirling around these days. </p>
<p>What a long, strange trip it’s been, to paraphrase the Grateful Dead.</p>
<p>In the wake of Watergate, the worst political scandal in American history in which Richard Nixon’s White House, his political party and numerous <a href="http://www.stetson.edu/law/faculty/torres-spelliscy-ciara/media/Statement%20by%20Prof.%20Torres-Spelliscy%20before%20the%20U.S.%20Senate%20Judiciary%20Committee%20on%20Watergate%20and%20Citizens%20United.pdf">corporations</a> secretly but rambunctiously broke federal laws, more than 70 people, including White House aides and Cabinet officials, were convicted of crimes related to the Watergate break-in and its cover up. </p>
<p>In the wake of Nixon’s unprecedented resignation, in August 1974, the new Republican President Gerald Ford signed important reform legislation into law.</p>
<p>The new laws established stricter campaign contribution limits and public disclosure requirements, a federal presidential campaign matching fund system and a new regulatory agency, the <a href="http://www.fec.gov/">Federal Election Commission</a>. </p>
<p>As President Gerard R Ford said, “The times demand this legislation.”</p>
<p>Three months later, the Republicans were utterly humiliated in the 1974 elections. The same happened again in 1976. It was the party’s electoral nadir of the past half century.</p>
<p>Indeed, former GOP chairman and Senator Bill Brock told me years later the public’s repugnance towards them was so bad that worried Republican elders had seriously considered changing the party’s name.</p>
<p>But that was then. </p>
<h2>Rolling back the reforms</h2>
<p>Over the past 40 years, many of the post-Watergate campaign finance reforms have been eliminated or severely eroded, craftily and relentlessly by the powers that be, including both major political parties. </p>
<p>Unfortunately, now even the bedrock value of <a href="http://www.brookings.edu/%7E/media/research/files/papers/2014/11/24%20why%20critics%20transparency%20wrong%20bass%20brian%20eisen/critics.pdf">transparency itself is under siege</a>, criticized for impairing the ability to compromise and weakening government.</p>
<p>And as for the once-humiliated Republicans, they have certainly made their comeback. They control both Houses of Congress, their appointees lead the US Supreme Court and, with the 2016 presidential election looming, they are girding their loins to win the trifecta of all three major branches of government.</p>
<p>How did all of this happen?</p>
<p>It’s a long story, but essentially, the US Supreme Court in a series of rulings that began in 1976 and continues to today, removed many of the post-Watergate campaign contribution limits and other reforms. </p>
<h2>Citizens United v. the Federal Election Commission</h2>
<p>The most significant Court decision of all was the one that occurred on January 21, 2010, in which the Court ruled that the First Amendment forbids the government from limiting independent political expenditures by a nonprofit corporation. </p>
<p>These principles have also now been extended to for-profit corporations, labor unions and other organizations. In other words, pretty much anything goes. Or, as one exasperated observer put it, “the United States Supreme Court struck down barriers to <a href="http://billmoyers.com/2014/07/12/the-senate-judiciary-committee-just-backed-an-amendment-to-overturn-citizens-united/">corporate control of democracy</a> with its 2010 <a href="http://en.wikipedia.org/wiki/Citizens_United_v._FEC">Citizens United v. Federal Election Commission</a> ruling.”</p>
<p>Five years ago and over 35 years after Nixon’s resignation, Justice John Paul Stevens denounced the controversial Citizens United decision in his <a href="http://www.supremecourt.gov/opinions/09pdf/08-205.pdf">dissent</a></p>
<blockquote>
<p>“The rule announced today —- that Congress must treat corporations exactly like human speakers in the political realm —- represents a radical change in the law. The court’s decision is at war with the views of generations of Americans…”</p>
</blockquote>
<p>Justice Anthony Kennedy, voting with the majority, attempted to reassure skeptics, arguing that transparency and disclosure would let citizens “<a href="http://www.nytimes.com/2015/01/25/opinion/sunday/the-growing-shadow-of-political-money.html">see whether elected officials are ‘in the pocket’ of so-called moneyed interests</a>.” </p>
<p>But since then, of course, untraceable donations are on the rise. We now have literally hundreds of millions of <a href="http://www.opensecrets.org/news/2014/11/money-won-on-tuesday-but-rules-of-the-game-changed/">secret dollars </a>washing into the US political process. </p>
<p>As Justice Stevens put it so well, </p>
<blockquote>
<p>“Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”</p>
</blockquote>
<p>Five months after writing that, Stevens, a Republican who had been appointed to the Court in 1975 by President Ford, retired from the bench at the age of 90.</p>
<p>The amount of completely or partially undisclosed money, often described as “dark money” spent by outside organizations in the 2014 elections is estimated to have been <a href="http://www.opensecrets.org/news/2014/11/money-won-on-tuesday-but-rules-of-the-game-changed/">over $200 million</a>, according to public records analyzed by the respected Center for Responsive Politics in Washington. </p>
<p>A record $6.3 billion was spent on the 2012 presidential and congressional elections and the “<a href="http://www.nytimes.com/2015/01/25/opinion/sunday/the-growing-shadow-of-political-money.html">growing shadow of political money</a>” will become even larger -– the 2016 elections may be the first $8 billion presidential and congressional election cycle.</p>
<p>For years, the United States has already had the longest and most expensive presidential elections on Planet Earth. </p>
<p>The Citizens United decision has significantly exacerbated our precarious, undemocratic condition.</p><img src="https://counter.theconversation.com/content/36872/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Lewis does not work or consult for, own shares in or receive funding from any company or organization that would materially benefit from this article. He serves on several nonprofit research and journalism organization Boards and Advisory Boards, including the Center for Responsive Politics, mentioned herein.
</span></em></p>This week’s news brings an important “ah hah” moment. The conservative billionaire brothers Charles and David Koch of Koch Industries and their political network of donors and opaque outside groups are…Charles Lewis, Professor and Executive Editor, Investigative Reporting Workshop, American University School of CommunicationLicensed as Creative Commons – attribution, no derivatives.