January PFD "Con" Analysis

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January PFD "Con" Analysis

Postby lsabino » Wed Dec 05, 2012 12:21 pm

Yesterday, we analyzed the “PRO” arguments for the January Public Forum Debate resolution,

Resolved: On balance, the Supreme Court decision in Citizens United v. Federal Election Commission harms the election process.

Today, we’re delving deeper into the topic by analyzing the “CON” side. We’ll begin with the offensive arguments (as in, reasons why the decision was good for the election process) and end with a few defensive arguments to undercut some of the pro’s advantage claims.

1. The Citizens United ruling necessarily preserved a no-exceptions vision of free speech which is critical to the integrity of free speech as a principle.

Molly Bernhardt Walker quotes an articulate explanation of this principle:

Molly Bernhardt Walker, “Carvin: Criticism of Citizens United decision 'puzzling',” Fierce Government September 18, 2012.

The argument against the decision "reduces to the very strange point that somehow there's a secret exemption in the First Amendment which exempts corporate speech and allows Congress to do whatever it wants with respect to corporations," said Carvin. "That's not consistent with the text of the Constitution, which says Congress can't make any law abridging speech. It doesn't say 'except for corporations,'" he added. Carvin said the decision holds that restricting money on speech is the same as restricting speech. Telling a newspaper it cannot spend money to endorse a candidate is the same as saying it cannot endorse a candidate, he added. "Surely no one thinks you could pass a law prohibiting MSNBC from endorsing Barack Obama, even though it used to be owned by General Electric and it's still a corporation," said Carvin. As such, some corporations are encouraged to speak while other corporations are [not] … and should not be permitted to speak, he said. He added that the notion that too much money equates to too much speech, or that corporations can drown out political speech is "unsubstantiated rhetorical nonsense."

Carvin here is arguing that distinguishing free speech rights for corporations from free speech rights proper is potentially destructive because it places a limit on free speech. Allowing limits on Constitutional rights is arguably bad because it undermines the integrity of the document and creates the potential for the selective application of rights.

Hans von Spakovsky elaborates:

Hans von Spakovsky, “Citizens United and the Restoration of the First Amendment,” The Heritage Foundation, February 17, 2010.

In the Supreme Court's landmark decision in Citizens United v. Federal Election Commission, Justice Anthony Kennedy and a majority of the Court upheld some of this nation's most important founding principles: the right to engage in free speech—particularly political speech—and the right to freely associate. Although corporations and unions still cannot contribute directly to political candidates, the Court overturned a federal ban on independent political advocacy by corporations and unions.[1]

The decision is arguably critical to reinforce the founding principles of free speech and free association and to ensure their continued viability in a modern society that presents unique challenges. This argument is powerful to deploy because, even if the pro is able to win that the practical result of Citizens United is not desirable for practical reasons, they don’t necessarily win that there should be restrictions on rights. The negative can argue that the integrity of rights trumps everything. Many argue that the right to free speech is useless unless it protects speech that many people disagree with. Consider: it’s easy to defend that people should have the right to make uncontroversial statements because they don’t offend anyone or pose any social consequences. The right to free speech protects that kind of speech, but it isn’t necessary to allow it. Free speech is meant to protect the right of individuals to voice unpopular or minority opinions without fear of retribution. If the pro wins that there are potential negative consequences to this kind of speech, they are just explaining a reason why it’s so important to protect it – to ensure that even when tested to the limit, we as a nation will reaffirm our founding principles.

Jay Mandle, Professor of Economics at Colgate, elaborates:
Jay Mandle, “Beyond a Constitutional Amendment,” November 30, 2012, Huffington Post.
A major problem however exists in this regard. For the plain fact is that curbing political expenditures or contributions does limit expression. Engaging in political speech requires money, and free speech is at issue when there are regulations imposed on the use of money to support a candidate or a point of view. There may be good reasons to regulate. But there is also a civil libertarian cost to regulation. To justify that cost it has to be clear that what will result will be a more democratic system than the one we have now. As written, the Constitutional amendment does not meet that test. What it promises is more rigorous limitations on political spending than exist at present. But what will undoubtedly remain is a system in which political funding still remains a private enterprise. It will too much resemble what we have now. At whatever level limitations are set, politics will remain funded by the few, not the many. Though perhaps attenuated, the ability of donors to set the terms of political debate will persist.

2. Citizens United removes the unfair incumbency advantage.

Matt Bai, “How Much Has Citizens United Changed the Political Game?” The New York Times, July 17, 2012.
A consequence of McCain-Feingold has been to flip on its head an old truism of politics, which is that incumbency comes with a fixed financial advantage. In the era of soft money, controlling the White House meant that a party could almost always leverage its considerable resources to dominate fund-raising. But today it’s much easier to tap into the fury and anxiety of out-of-power millionaires than it is to amass contributions in defense of the status quo. … It isn’t that liberals don’t like Obama or grow queasy at the mention of super PACs. It’s a function of human nature: nobody really gets pumped up to write a $10 million check just to keep things more or less as they are.

This argument highlights a reason why Citizens United may actually make the election process more democratic. Consider that an incumbent (someone who is already in office) generally has some kind of fundraising advantage – they’ve won an election, they often have good connections and name recognition in the fundraising community, they may have more media access by virtue of their office, etc. This tends to unfairly weight an election to someone already in office. Bai argues that the Citizens United decision cuts against that reality because it allows larger amount of money to funnel to challengers than before from corporate sources (which have access to larger lump sums), undercutting the fixed financial advantage of someone already in office. In others words, it provides a more level playing field.

We’ll move now to some defensive arguments. For this resolution, defense will be particularly important to the con because their main offense, free speech, will need to outweigh a variety of small democracy disadvantages. It may seem like the con has relatively more defense, but you’ll find that the Con need only answer a few internal links to a single major pro advantage (voter apathy) for their free speech advantage to outweigh. We’ll begin with:

1. Citizens United has a relatively small effect on campaign spending.

In response to the pro argument that Citizens United will open the floodgates to huge campaign spending by corporations, consider the remarks by Mitch McConnell, quoted in the Washington post this past May,
Robert Barnes, “Supreme Court faces pressure to reconsider Citizens United ruling,” Washington Post, May 20, 2012.
“From the day it was issued, this court’s ruling in Citizens United has been the subject of sustained, overheated, and sometimes irresponsible attack,” says a brief filed for … Mitch McConnell … The brief contends that the concerns of dissenting justices … that corporations would take over all aspects of campaign finance have not been realized. More than 86 percent of the nearly $100 million spent by the eight super PACs linked to Republican presidential candidates, the brief said, came from wealthy individuals whose role in campaign finance has been blessed by the court since 1976.

Here we see the importance of not conflating Super PAC spending with Citizens United because so much of it would have been legal without the ruling. Herein lays an important negative strategy element – peeling away the rhetoric surrounding Citizens United and parsing out the actual laws that affect political spending.

Most affirmatives will be rhetorically persuasive on the question of special interests in politics, but it’s useful to note that some of this money will inevitably be spent. According to an article by Matt Bai in the New York Times,

Matt Bai, “How Much Has Citizens United Changed the Political Game?” The New York Times, July 17, 2012.
It helps first to understand what Citizens United did and didn’t do to change the opaque rules governing outside money. Go back to, say, 2007, and pretend you’re a conservative donor. At this moment, you would still have been free to write a check for any amount to a 527 — so named because of the shadowy provision in the tax code that made such groups legal. (America Coming Together and the infamous Swift Boat Veterans for Truth were both 527s.) Even corporations, though they couldn’t contribute to a candidate or a party, were free to write unlimited checks to something called a social-welfare group, whose principal purpose, ostensibly, is issue advocacy rather than political activity. The anti-tax Club for Growth, for instance, is a social-welfare group. So, remarkably, is the Koch brothers’ Americans for Prosperity and Karl Rove’s Crossroads GPS.

That is, there’s a critical solvency question for the negative to consider. Citizens United may make it easier for corporations to become financially involved in politics, but it certainly doesn’t provide the only access point for corporate influence.

2. Allowing shareholders to approve political expenditures would be expensive and burdensome.

In response to the pro argument that Citizens United allows corporations to spend investors’ money on political candidates with which they may disagree, Hans von Spakovsky outlines some ways in which this is inevitable and thus not a reason to vote pro:

Hans von Spakovsky, “Citizens United and the Restoration of the First Amendment,” The Heritage Foundation, February 17, 2010.
The claim that shareholders of corporations must be "protected" from political expenditures with which they do not agree is … baseless. The various proposals that are being made to "protect" shareholders are epitomized by a Brennan Center report recommending that federal law be changed to require that corporations obtain the consent of shareholders before making political expenditures and that corporate directors be held personally liable for violating this requirement. Supposedly, this "will empower shareholders to affect how their money is spent. It also may preserve more corporate assets by limiting the spending of corporate money on political expenditures."[26] The first priority of all business corporations is to sell their goods and services and make a profit. It is highly likely that most businesses will avoid what may be perceived as partisan political activities that could upset their customers and hurt their sales. Corporations may very well speak about government regulations that affect their bottom line, but they should also have the ability to speak when government actions threaten to damage their business and the employment pros­pects of their employees. Beyond that, why would the average shareholder want to direct corporate management through specific consent requirements for some expenditures but not for others? Many companies also make charitable donations that shareholders may not favor… All expenditures made by a corporation can affect its assets, yet there are no proposals to require specific shareholder consent for other types of expenditures. The vast majority of shareholders probably do not want the time-consuming responsibility of approving all of the different types of expenditures made by their companies and also know that shareholder surveys and votes can be very expensive, thereby diminishing corporate assets.'"[27]

The argument here is that having your invested capital go to things you didn’t explicitly approve is simply a reality of investing money (and, of course, you can always choose not to invest if this is something that concerns you). Von Spakovsky argues that not only do charitable donations from a corporation run the same risk of being partisan in a way with which investors would disagree but also that having shareholders approve every use of their cash is expensive and burdensome.

3. There are financial disincentives for corporations engaging in rampant political spending.

In a similar vein as the previous argument, there are also other disincentives to corporations spending shareholder dollars on divisive issues (namely, the potentially damaging effect on a company’s bottom line):

Matt Bai, “How Much Has Citizens United Changed the Political Game?” The New York Times, July 17, 2012.
But the best anecdotal evidence suggests that this kind of thing isn’t happening in nearly the proportions you might expect. Kenneth Gross, an election lawyer who represents an array of large corporations, told me that few of his clients have contributed to the social-welfare groups engaged in political activity this year. They know those contributions might become public at some point, and no company that sells a product wants to risk the kind of consumer reaction that engulfed Target in 2010, after it contributed $150,000 to a Minnesota group backing a conservative candidate opposing gay marriage. “If you’ve got a bank on every corner, if you’ve got stores in every strip mall, you don’t want to be associated with a social cause,” Gross told me.

A company’s goal is to appeal to the broadest possible base of individuals so that they will buy their products or use their services. On issues where the nation is sharply divided, it’s unwise for companies to take a pronounced stand and risk alienating half the market. It seems unlikely, then, that shareholder money would go to any variety of social issues. It’s much more likely that corporate money would tend to strictly focus on issues that directly affect the operations of the business itself.

4. Citizens United doesn’t allow foreign influence in elections.

In response to the pro argument that Citizens United creates the possibility of foreign entities or citizens to influence the U.S. political process by investing in U.S. corporations, Von Spakovsky goes on to discuss the limits that prevent participation of foreign citizens in U.S. elections:

Hans von Spakovsky, “Citizens United and the Restoration of the First Amendment,” The Heritage Foundation, February 17, 2010.
Critics of this holding, including President Barack Obama, claim that the decision will "open the floodgates—including foreign corporations—to spend without limit in our elections"[2] and that shareholders must be protected from political expenditures by corporations in which they own shares. Neither of these criticisms is justified. Foreign nationals, including foreign corporations, are banned from participating directly or indirectly in American elections by federal statute and Federal Election Commission (FEC) regulations. The Citizens United decision did not even consider that ban, let alone overturn it.

The argument here is that legal protections exist to limit and in many cases bar the influence of foreign nationals in US elections. He argues that pro claims are over-stated and these regulations will continue to be effective even despite the ruling.

5. Even mass spending doesn’t affect the political process to a huge extent.

A final defensive argument on the democracy question: Two authors explain why the pro’s nightmare scenarios may drastically overstate the impact of media and money. According to Bai, again:

Matt Bai, “How Much Has Citizens United Changed the Political Game?” The New York Times, July 17, 2012.
I recently called Carter Eskew, a longtime Democratic adman and strategist whose clients included Al Gore in 2000, and asked him a simple question: How much did he think he would really need for a candidate today, if he could have an unlimited budget to run a national ad campaign, including all the outside money? Eskew paused before giving a declarative answer: $500 million. Anything beyond that, he said, was probably overkill. In other words, there’s a threshold below which a presidential candidate can’t really compete effectively, and that number — whether it’s $500 million or something less — is outlandish enough that it should give us pause. But beyond that number, it’s not clear that spending an extra $200 million or $500 million will really make all that much of a difference on Election Day. More likely, the two ideological factions are now like rivals of the nuclear age, stockpiling enough bombs to destroy the same cities over and over again, when one would do the job.

Gavin Aronsen, quoting James Bopp, the legal mind behind the Citizens United case, puts this into the context of the 2012 election:

Gavin Aronsen, “The Man Behind Citizens United Says 2012 Has Vindicated Him,” November 12, 2012, Mother Jones.
Now that the election's over, Bopp says he's been vindicated. When I caught up with him late last week, he told me he figures that Mitt Romney's loss was probably due to a variety of factors like poor messaging and spending. Without Citizens United, though, he says the election would have turned out much worse for Republicans: There would have been no counterbalance to the mainstream media. "The lesson here is all the hype over independent spending was just completely overblown," Bopp says. "Nobody can buy an election." The poor return on investment among the biggest conservative outside spending groups would appear to back that up. You can only spend so much to sway voters, says Bopp. "There's a diminishing returns as you saturate a market. Once you've got your message across, the addtional spending accomplishes nothing." The pro-Romney super-PAC Restore Our Future, for instance, made significant ad buys just one week out from the election in Minnesota and New Mexico, two states that Obama was at no risk of losing. Those moves led reporters to wonder if outside groups had raised more money than they knew what to do with. "That's why this thing about buying elections is fundamentally false," Bopp concludes. The $6 billion in total spending in 2012 dwarfs that of any recent election, but Bopp simply attributes that to an increasingly bloated system that requires increasing amounts of money to compete against incumbents.

This is an interesting argument to consider: As with anything, there is a critical point beyond which money is no longer decisive. Thus, if both sides are able to hit that point, one going far beyond it hardly matters as much.

6. Pro authors overestimate the influence of the media in general.

Moreover, the media may not be as powerful as pro authors assume (although, to be fair, their objection may be based more on principle). According to Tom Keane of Boston.com:

Tom Keane, “Citizens United critics take a dim view of the electorate,” Boston.com, July 8, 2012.
Of course, the only way that this could be true is if, in some fashion, voters were unable to resist the siren song of advertising. That seems to be the theory, however: Voters are easily led and easily bamboozled, pushed this way and that by whatever ads they happen to encounter. Maybe that’s true. … Personally, I don’t yet despair for democracy. Granted, the ads are annoying and pervasive, but that doesn’t mean they dictate results. Indeed, in past years, it has been remarkable to watch the degree that people — especially those who think of themselves as ideologically “independent” — agonize over their decisions as an election approaches. They listen to candidates; watch debates; talk to friends, co-workers, and neighbors; and scour news from all sources (which increasingly include blogs, tweets, and postings). Then too, the power of advertising is oversold. With ad-skipping features readily available, it gets ever harder to reach people with TV ads anyway. But even when people see the ads, they aren’t credulous dupes. Viewers know that just because Pepsi says it’s better than Coke doesn’t mean it really is. And they know as well that just because one super PAC calls a politician a fraud, liar, or crook doesn’t mean that too is true.

This argument is one of the more interesting angles to consider. In reality, most people are confronted with ads all day long, every day. Although some of these ads will persuade people, the vast majority are just disregarded. In fact, with ad-skipping features on DVR’s and other ways around viewing ads, many people can choose to skip television advertisements altogether (television ads being the core of the Citizens United ruling).

Kevin Drum makes a comparative claim about Super PAC advertising versus other functions as performed by central campaigns (not Super PACs):

Kevin Drum, “In the Crunch, Citizens United Turned out to Be a Big Fizzle,” Mother Jones, November 8, 2012.
But organizing is different. Done properly, it's simply far more efficient for organizing to be centralized. You can target more precisely, you can make sure nothing falls through the cracks, and you can make sure that people get called with the right message and don't get barraged by multiple organizers. Unless I'm missing something important, Super-PACs will simply never be as good at organizing a national campaign as a highly-disciplined central organization. And that's pretty important. I suspect that one of the lessons of 2012 is that we've roughly hit saturation on presidential advertising. There are only so many hours of TV broadcasting in the day, and only so many repetitions of a message that are effective. Citizens United might have unleashed a flood of Super-PAC money, but there might no longer be anywhere for it to go because the ground game really is as important as everyone says, and the best ground game comes from either the campaign itself or the party apparatus. If that's true, it may turn out that Citizens United isn't the end of Western civilization after all, but for reasons none of us realized two years ago.

His argument clarifies that the things Super PACs do (run lots of mass media ads) eventually hit a saturation point with voters where they’re fatigued by a message and stop caring. The 2012 election illustrates that at a certain point all the generic ads were easy to just tune out. Central campaign organizations, however, have what they call a “ground game,” which is arguably infinitely more important than the media. Having people knocking on doors, talking to other voters, registering people to vote, etc. is much more important, Drum argues, for winning elections than controlling the commercials they see. This is because a person-to-person campaign delivers an individualized message and a personalized plan for overcoming possible hurdles to voting.

This concludes our January “con” analysis of the Citizens United topic! As always, feel free to submit your cases (or even your questions!) for a free critique by e-mailing lauren (dot) sabino (at) ncpa (dot) org. Good luck in this new school year!
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