Sentencia Citizens United v. Federal Election Commission, corrupción y derecho al voto en Estados Unidos

En este artículo se estudia la sentencia Citizens United v. Federal Election Commission (Ciudadanos Unidos contra la Comisión de Elecciones Federales), dictada por la Corte Suprema de Estados Unidos como mecanismo de legalización de la influencia irrestricta del financiamiento privado en la política estadounidense. La hipótesis aquí es que esta modificación institucional legaliza, a su vez, una forma de corrupción política que se evidencia en la actual legislación restrictiva del voto. Se presentará un marco referencial en el que se definirán los conceptos que articulan el análisis. Luego, se hará una descripción de los antecedentes y el contexto de la sentencia Citizens United v. Federal Election Commission; en seguida, se realizará un análisis de la sentencia, para pasar luego al repaso de dos de sus consecuencias: la primera es la influencia del dinero negro (donaciones anónimas) tanto en las campañas como en la selección de jueces, y la siguiente es la exposición de la influencia del financiamiento privado ilimitado de las campañas en la legislación restrictiva actual del voto.

Allocating Unlimited Money: What Explains Super PAC Spending in Congressional Elections?

How do Super PACs allocate their resources? The question is both timely and relevant, particularly as we reflect on the ten-year anniversary of the Citizens United ruling. Super PACs now outspend – sometimes by huge margins, as in the 2016 presidential election – all other groups’ independent expenditures including those of parties, unions, and 501(c) organizations. The issue is especially important in congressional politics, where Super PACs have an opportunity to shape the institution every two years through congressional elections. Utilizing outside spending data from the Center for Responsive Politics, we analyze four U.S. House election cycles since the Supreme Court’s landmark 2010 Citizens United ruling (2012–2018). The likelihood that Super PACs invest in a race is strongly determined by the electoral context, even after controlling for the legislative influence of the incumbent member of Congress.

On Constructing a Corruption Principle: The Importance of History and Theory in Practice

Citizens United has stimulated a cottage industry of legal scholarship on corruption. A prominent stream of this literature is self-consciously atheoretical and suggests that the current state of corruption jurisprudence suffers from a misconceived reliance on liberal political theories and a rejection of the public good. We argue that it is impossible to understand specific acts of corruption without a political theory explaining why such actions are wrong. We show that the current jurisprudence relies on a mistaken intellectual history of the public good and a political theory of American constitutionalism that commodifies citizenship and treats political participation as a market good. Pace Teachout, we cannot draw the bright lines many legal scholars desire without a better political theory of the primary goods we want to protect.

Introduction

In 2016, a businessman so discredited that he could no longer get a casino license or borrow money from an American bank was elected president of the United States of America. How did this happen? It is easy to mock and ridicule Donald Trump as if he is the problem. In fact, he is a symptom of a much larger issue that has been bedeviling the GOP for nearly two decades: an intraparty crackup of massive proportions. “Crackup” here refers to a breakdown of the fragile alliances between coalitions within a party that prevents its leaders from developing goals they can deliver on when they control the White House and majorities in the House and Senate. This introductory chapter explains why party crackups are inevitable in a federal system with national money and local primaries. But this is the first time—for either party—that no group within the party could create a synthesis of old orthodoxies and new realities that altered the party’s direction enough to build a new consensus. The straw that broke the elephant’s back is the unintended—yet predictable—consequence of changes in campaign finance (popularly known as the McCain-Feingold bill) and the Supreme Court’s Citizens United ruling. These changes limited the party of legislative leaders to reach intraparty consensus and bargain with the other party. The combination has stripped the parties of most of their power to enforce any collective responsibility on their legislative colleagues, or upon a president from their own party.

Campaign Finance Regulations and Public Policy

Despite a century of efforts to constrain money in American elections, there is little consensus on whether campaign finance regulations make any appreciable difference. Here we take advantage of a change in the campaign finance regulations of half of the U.S. states mandated by the Supreme Court’s Citizens United decision. This exogenously imposed change in the regulation of independent expenditures provides an advance over the identification strategies used in most previous studies. Using a generalized synthetic control method, we find that after Citizens United, states that had previously banned independent corporate expenditures (and thus were “treated” by the decision) adopted more “corporate-friendly” policies on issues with broad effects on corporations’ welfare; we find no evidence of shifts on policies with little or no effect on corporate welfare. We conclude that even relatively narrow changes in campaign finance regulations can have a substantively meaningful influence on government policy making.

Gauging (Perceived) Corruption

Chapter 3 aims to gauge both the reality of, as well as public opinion on, the central issue of corruption. It investigates public opinion on corruption among elected officials, source of corruption, effectiveness of laws and regulations in mitigating corruption, support for campaign finance reforms, etc. The data strongly suggest that people think corruption is rampant despite limited evidence that quid pro quo corruption is anything more than a minor problem. This fundamental attitude has not changed much in the wake of the Citizens United decision. Furthermore, they believe the problem is mostly intractable and that most of the commonly proposed reforms of the campaign finance system will not work. Nevertheless, they still support these reforms. Moving from simple descriptive data to more associational analyses, this chapter also explores the effect of campaign finance laws on campaign spending and then the effect of both on corruption attitudes. The results are not what the Court would have expected.

Paradigmatic Politics

This final chapter examines films distributed by the conservative production company Citizens United, placing special emphasis on the films’ excessive use of stock footage as a substitute for archival images. The stock footage, I claim, functions as an aesthetic correlative for neoliberalism in the era of communicative capitalism and likewise provides the primary aesthetic means by which the hysterical films mimic the conventions of compilation documentaries. The generic, paradigmatic images are paired with the talking points offered by political speakers, thereby implying that the former validates the latter, despite the fact that both modes of presentation bear no direct relationship to the referents they invoke. The simulacrum of more conventional documentary forms and strategies provides the hysterical films with the flexible tools by which to dismiss or erase from view any and all political alternatives, avoiding a substantive debate through the very performance of debate.

What Do Americans Know about Campaign Finance?

Chapter 2 establishes a baseline by reviewing public opinion concerning money and politics, pre– and post–Citizens United, focusing on what Americans know about money in politics and campaign spending. On the one hand, given that citizens are typically not well informed about politics, it should come as no surprise that they do not know all that much about candidate spending or campaign finance. On the other hand, the public is not completely off base with respect to its sense of money in politics, and this basic intuition is perhaps even sharper in the post–Citizens United era. The data suggest that while Americans know a little bit about campaign finance, there is no systematic correlation between the regulatory environment of the state and how much people in that state know about campaign finance.