How to Undo The Citizens United Decision

By stancutler,

  Filed under: General
  Comments: None

When you turn the telescope around, if you view the problem as one of cost control rather than financing, two approaches seem feasible: limiting the election cycle and empowering the FCC. Presidential hopefuls, particularly Bernie Sanders, should be making these proposals. A Constitutional amendment, a fix that will be extremely difficult to accomplish, the now accepted approach, likely to become an important campaign issue, is flawed.
For the cable news networks, revenues rely critically on the the election cycles. Just as retailers need Christmas, cable news needs election days. The bigger the audience watching the election news – and interviews, and “in-depth” analyses, and pundits, and popularity graphs, and election maps – the more money the media charge for airtime. The cost rises continually until the November elections. The icing on the cake is the money spent by the Presidential Campaigns themselves to advertise the candidates in both the Primaries and the General Elections. Airtime is auctioned off to the highest bidder. A similar process takes place in every TV newsroom in every local outlet from coast to coast. And the rates go up every cycle. In other words, as bad as it is now, it can only get worse.
Regulating the money spent has proven impossible, it’s even more difficult since the Citizens United decision legalized unlimited financing.
Campaign finance reform doesn’t work. It is a failed approach. I think a better solution is to reduce the cost, not to regulate financing. If you owned a widget factory, you would do everything you could to reduce the cost of production. You’d install faster, cheaper machines. We own a democracy, a factory, if you will, that produces Presidents and Legislators. But it is our democracy, not the financiers’. We need to reduce the costs of production.
I suggest that Congress enact legislation to limit the duration of the election cycles.
Article 1, Section 4 of the US Constitution, states “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.” It is within Congress’s power to require that all primary elections occur either simultaneously or during a very limited span of time, perhaps a single week during a quadrennial election year.
This not the same as regulating free speech. The First Amendment rights of candidates and the Parties would not be in any way regulated. They’d be free to buy as much advertising as they choose. But it’s unlikely that they would spend nearly as much as they do under the current system, as voters tend to forget campaign messages fairly quickly. Campaigns would be wasting their money investing in advertising too soon before the actual voting.
Under a simultaneous primary system, it is far more likely that the final selection of Presidential Nominees would take place at the quadrennial conventions. But the conventions would be more democratic than they used to be, so long as each State’s and Party’s rules pledge delegate votes to the winners of the State Primaries, thus ensuring that the popular choices would significantly affect the convention outcomes. Yes, there would likely be a considerable amount of deal-making and trading at the conventions. Yes, there would be debates, compromises, and pragmatic decisions. That’s called democracy.
By abbreviating the primary cycle, there would be other significant benefits. The “early” primaries would have diminished influence on the other states, and the later primaries would be far more consequential. As it now stands, after a month or two of the first several primary elections, there are only a few front runners left in the race.
We need to reform the system that has changed our politics from a democracy into a form of oligarchy. But there are a host of reasons to think that a Constitutional amendment is a dubious prospect, fraught with political and legal obstacles that are likely to be insurmountable. And exactly what this amendment would say is problematic. But a law enacted under the powers vested in Congress by Article 1 Section 4 of the Constitution makes an Amendment unnecessary.
Campaign finance reform efforts have foundered on the First Amendment. The Supreme Court has ruled that Congress does not have the power to limit campaign funding on the grounds that contributors are exercising their rights to free political speech, manifested as money spent on advertising.
Senators McCain and Feingold, a Republican and a Democrat, in 2002, managed to pass a bipartisan bill that closely regulated campaign financing. Since 2002, repeated efforts to tweak the regulations with legislation have been rejected by a Supreme Court majority who have ruled that money spent on election campaigns is a form of political expression protected by the 1st Amendment, that reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Time and money – the longer something takes, the more it costs. Under a simultaneous primary system, the influence of rich donors would be minimized as a result of the lower cost, not as a result of efforts to limit their contributions. There would be no First Amendment grounds for a challenge.
Another approach to campaign cost reform is to consider the media companies as public utilities like electricity or water companies. Indeed, they are. Back in the 1920s, when the Federal Communications Commission was established, that was the perspective. The reasoning at the time, which I believe is valid, is that our society absolutely depends upon the companies that profit from providing news services. Water companies make money, as do power companies and transportation companies. Government is obligated to regulate businesses that benefit us, the people.
Giving the FCC real regulatory teeth is a legitimate approach. I think Congress ought to pass legislation that redefines the Federal Communications Commission. In its current form, the FCC arbitrates merger and acquisition disputes. If they are given cost control authority, as a true regulatory agency, then a government agency could serve as a brake on runaway campaign costs. I say go for it.

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