- The Washington Times - Monday, May 16, 2011


Public Citizen, a self-styled government “watchdog” group, recently released the results of an informal survey on how congressional staffers have reacted to the Supreme Court’s landmark Citizens United decision from last January. The report, “Cause for Concern,” is aptly titled but not for the reasons Public Citizen purports. To wit, rather than demonstrate the supposed deterioration in our democracy wrought by the court’s ruling, the report discloses far more about the ruling-class view of government that apparently is held by Public Citizen and some of the survey respondents.

In Citizens United, the Supreme Court struck down fairly recent statutory provisions prohibiting corporations and labor unions from making independent expenditures expressly advocating for or against federal candidates, as well as so-called “electioneering communications” that merely reference federal candidates within certain time windows before an election. The Public Citizen survey attempts to show that the decision has empowered corporate interests. Supposedly, corporations may now intimidate legislative staff with the threat of hundreds of millions of dollars of negative ads against their bosses’ re-election efforts if they don’t accede to the corporations’ demands.

Even a cursory analysis of the survey results show that, in fact, more of the respondents said Citizens United has not “strengthened the influence of lobbyists in the policymaking process” than those who answered affirmatively. Surprisingly, those results even reflect the fact that 70 percent of the respondents were Democrats, who, according to the report, disproportionately thought Citizens United had a negative effect.

Putting aside the raw numbers, some of the attitudes disclosed by both the survey respondents and author alike are quite revealing. For example, a not-insignificant number of staffers agreed with the statement that they “worry about preventing electioneering expenditures against the member for whom I work.” When asked to elaborate, one respondent said, “The concern that every decision we make that affects some large organization or corporation will end up contributing to [spending against us] is ever-present and totally demoralizing. This isn’t how the system is supposed to work.”

All this begs the question: What is the alternative? How is the system “supposed to work”? Would we prefer a system in which members of Congress can implement whatever laws they like, and those who are affected are not allowed to speak out? Would we prefer a system in which legislators operate in a Platonic vacuum, in which they simply divine whatever policies would benefit the “public interest” based on their own superior impartial judgment?

Surely, if some legislators were to enact policies antithetical to the “watchdog” groups’ agenda, even Public Citizen must acknowledge that it should have the right to respond, including the making of “electioneering expenditures” against those legislators. How, then, are we to square that fundamental First Amendment right with the survey’s antipathy toward political spending directed against certain legislators? Are we to distinguish “good” spending from “bad” spending, and if so, where do we draw the line and on whose terms? Should “electioneering expenditures” be permitted only for those groups whose agenda meets the approval of Public Citizen?

And why is it that, as Public Citizen concludes, “election spending by special interests” that affects “any alteration of policymaking behavior” represents “a degradation of the honesty and integrity of the policymaking process”? By this logic, it would seem that public policy should be decided only on the substantive merits of any given issue. Thus, any extraneous outside influence that effectuates an “alteration of policymaking behavior” should be viewed as similarly inappropriate. And because advertisements don’t elect politicians - voters do - should the latter’s influence over policymaking be curtailed as well?

To illustrate this logic, suppose it could be determined objectively that storing nuclear waste in one legislator’s district would result in a net benefit by providing the nation with an emissions-free energy source. Suppose further that this proposal could be guaranteed to pose no threat to public health and safety. Under Public Citizen’s reasoning, it should be inappropriate for that legislator even to consider the politics of his constituents’ reaction, let alone any political spending to oppose legislators who support the measure. In short, for opponents of the Citizens United decision, the ideal system is not government by democrats (with a small “d”) upon which our country was founded but rather a government by technocrats. The latter generally has not fared well where it has been tried.

Beyond triggering a debate over the merits of permitting political spending by corporations and unions, Citizens United also has sparked a yearlong battle over how much disclosure should be required for such spending. But the negative reactions to the decision, as demonstrated by the Public Citizen survey, disclose something far more revealing: a fundamental disdain for democracy.

Eric Wang is a campaign finance lawyer.



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