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Hidden Dangers of Citizens United Ruling

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In the wake of the Supreme Court's decision in Citizens United v. Federal Election Commission, there has been a lot of anxiety over what elections will now look like with corporations and unions free to spend as much as they like on political advertising. Much of the discussion focuses on the overwhelming influence that could be purchased by deep-pocket entities, or on whether or not foreigners will be allowed into the American election process. But my main concern is not the money that will be spent overtly, but rather with what happens outside the public's eye -- the unseen influence which may be wielded.

I am not denigrating the overt problems which may develop, but rather feel that these problems have been adequately explored elsewhere by many others. Giving corporations and unions full free speech rights when it comes to elections may destroy American democracy as we know it, and then again it may not. I do wonder how many corporations will actually take the opportunity to attempt influencing voters in such a fashion, personally, since corporations are in business to make money. And these days, annoying half the electorate may mean a serious drop in a company's bottom line. So, at least at first, I think most large companies will be rather cautious about this sort of political activity. As I said, they're in business to make money.

Plus, corporate donors are used to funnelling such political money through lobbyists and through political action committees, and they may find this route to be more effective (and more anonymous), and continue to play the political money game pretty much how they've been playing it for years.

I fully admit that I could be wrong about all of that, though. Especially after a few election cycles, and after a few bold companies "test the waters" of the new rules.

And Congress could leap into action and solve the problem proactively, before even the 2010 midterm elections take place [pause for laughter]. Actually, Congress, even if it were super-efficient in such matters (which, realistically, it is not), doesn't have a lot of room to maneuver, at least in the short term. Laws may be passed which force corporations and unions to fully disclose their activities, or even force the leader of the corporation or union to appear at the end of the ad saying: "I'm so-and-so, and I approved this message." But, since Citizens United was a Supreme Court decision, Congress can't just pass another law to replace the precedents which were just overturned -- because any law they pass along these lines will likely be struck down as being unconstitutional as well (at least, with the Supreme Court we've currently got). Meaning that to truly fight back against the Citizens United decision, Congress would have to pass a constitutional amendment -- a long process which is extremely difficult to accomplish.

But what really worries me about the new rules for corporations and unions is what could happen out of sight of the voting public. I can foresee two ways for such invisible influence to happen, although there may be others I have not thought of as well, I admit.

The first of these is a corporation or union merely threatening to outspend an incumbent member of Congress in an upcoming election. This would likely be much more likely in the House, but could also take place in certain Senate races as well. Getting elected to the House is a relatively cheap thing to do, at least in comparison to Senate and presidential elections. Most House races only cost a few million dollars, tops. Many people are elected to the House who spend far less than that -- hundreds of thousands of dollars, not millions. This is due to the nature of House districts, many of which are demographically small, with no large "media markets" (large cities) within the district. In such races, radio ads may actually be a bigger expense for the candidate's war chest than television ads. Meaning also that it would be a lot cheaper for a corporation or union to influence such a small-time race.

Say, for the sake of argument, I was in charge of a large corporate entity. As the CEO of CW Industries, Inc., I make an appointment with a number of House members who happen to sit on the "House Committee On Those Pesky Bloggers." To each of them, I would say some version of the following (parsed, of course, by my legal team so as to avoid being technically illegal extortion or vote-buying): "I see the committee is going to consider the Blog Regulation bill next month. I'm here to tell you we don't like this bill, and would prefer to see it killed in committee. Now, there are two ways this could go. The first is if you vote for the bill, in which case we have a campaign advertising fund of twelve million dollars ready to support whatever challenger you face in your next election. What did you spend on your last race, a million and a half? Well, we're going to spend eight times that against you next time around, just so you know. We pulled in forty-two billion last year, so we've got a few million to spare to make sure you are voted out of office -- whatever it takes, basically. Or, of course, if you find it in your heart to vote against the Blog Regulation bill, then we would be using that money elsewhere, to defeat some other House member. So, just wanted to let you ponder that, Congressman."

The beauty of this scheme is (assuming it was parsed in language to avoid illegalities, which isn't really all that hard to do, when it comes right down to it) that if CWI, Inc. scares enough House members by these tactics, then we don't have to pay a dime during the actual election season. If I can pocket enough Representatives to kill the bill this way, then I have not promised anyone any actual campaign donations -- I have instead withdrawn the promise to spend against incumbents. Meaning such spending never actually takes place. Which means the public never even notices my naked vote-buying, because I don't run a single ad anywhere paid for by my corporation.

This could even work in Senate races in smaller states (or thinly-populated states). Some Senate races do run into the tens of millions of dollars, but those are mostly in large states with multiple big media markets (with very expensive television ad prices). Other Senate elections cost far less. Meaning influencing them would be within the budget of most large corporations as well. And influencing dozens of House races would be extremely cheap for even a modestly large corporation to handle (think of how much money is currently spent on lobbying, for comparison).

But the truly worrisome part of this is that it is all invisible to the public. Now, such deal-making and influence-buying already takes place in Washington, one might argue, so it really wouldn't be all that big a change. Which is, to a certain extent, true. But with no limit on what a single corporation (or union, to be fair) can spend on any particular race, the problem may get far worse, and extorting votes in such a fashion may become the new norm.

The second way corporations could influence (smaller) elections would be somewhat visible to the public, but in a much more subtle way. I have to admit that I'm no expert in F.E.C. regulations (or F.C.C. regulations), so I'm not even completely sure this one is legally possible.

But, as CEO of my corporation, what is to stop me from targeting a House district with a very limited media market, and just buying up all the available advertising time for a few months prior to an election? I could purchase every available ad in the market, and lock up the airwaves, giving me a monopoly over what voters hear and see during election season. Then I could either run innocuous ads to fill up the time (public service announcements, or ads for my company, or whatever), and squeeze out the political competition. Or (again, common sense tells me that this is likely illegal, but who knows?) I could re-sell the ads to whomever I choose. I could, in effect, decide who gets to speak to the voters and who doesn't, meaning I could sell all my ad space to the incumbent's challenger, and present only one side of the argument to the public.

A lot goes on in America that the public never sees, especially when it comes to corporations. Say you were a car company, for instance. Call it YouCo Motors. And say YouCo was having to recall a large number of cars because of dangerous design problems. Now, unless some massive class action court case digs things like this out, it is entirely possible (and entirely legal) for YouCo to have known about this problem for a long time. YouCo may have been threatened with lawsuits repeatedly over the mechanical problems that have now come to light. In each case, YouCo is free to offer a "settlement" to the party suing them, with a "non-disclosure" clause buried within it. Such a clause would, in essence, be a gag order on the party suing. In other words, the corporation pays out a bunch of money, but if the person receiving the money ever publicly talks about the settlement, then they have to pay the money back. Such "buying someone's silence" happens all the time in the American legal system. The result is that the public is never made aware of the problem, and keeps buying YouCo cars, confident that they aren't lemons.

The corporation in such an instance does a "cost/benefit" analysis, ever-watchful of their bottom line. It goes something like this: multiply the cost of settling one of these cases by the expected number of cases over a period of time -- then compare that number to the money it would take to actually do the redesign and fix the problem. Whichever number is lower, that is the way the corporation will choose, nine times out of ten. In other words, it is actually cheaper in many cases to just pay off the victims, instead of paying the money to fix the problem.

And the public, due to the non-disclosure agreements in the settlements, never hears about it.

This is why I get worried about the new rules for elections the Supreme Court has handed down. Because corporations are used to pulling political strings behind the scenes, not so much out in the light of day. And they are fully capable of performing such cost/benefit analyses, and figuring out what is cheaper -- complying with the new law Congress passes, or spending millions of dollars to kill the bill. Sometimes compliance will be the cheaper route. But other times, throwing money into the political election cauldron will be the cheaper way to go. And, knowing the influences money already has over our political process, what worries me isn't so much seeing corporate "vote for this guy" ads during election season, but all the leverage being used behind the scenes, that the public is never made aware of.

So while others are free to worry about the overt influence of corporate and union money on our political system, it's the money and influence (and threats of such) which are simply not noticed by the public, or even by journalists, that worries me far more. Such backroom dealing already takes place even with the limited tools of lobbying and political action committees, but (after Citizens United) it could get a whole lot worse, and a whole lot more intense. And, to me, such hidden dangers are even scarier than anything which happens in the public's view as a result of the ruling.

 

Chris Weigant blogs at:
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