Perspective
The Potential Health Effects of Citizens United
N Engl J Med 2010; 362:1356-1358April 15, 2010
- Article
On January 21, 2010, the U.S. Supreme Court reached one of its most controversial decisions in years, with Citizens United v. Federal Election Commission.1 The opinion overturned long-standing precedents that forbade corporations from using unlimited monies from their general funds for political speech — specifically, for advertisements supporting or opposing candidates for elected office, in the weeks and months before certain elections. Although it may not initially appear to concern health, Citizens United has important implications for health care providers and public health. The Court has effectively opened the financial floodgates to give corporations unprecedented influence over the election of the people who determine health policy.
Corporations are legal entities whose rights include the ability to sue and be sued, the power to initiate and sign contracts, and the ability to own property. In his dissenting opinion in Citizens United, Justice John Paul Stevens wrote that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings.”1 Although their rights are similar to those of people, corporations are creations of the state that receive legal protections to help individuals conduct business and generate profits.2 With Citizens United, the Court has given corporations a powerful tool for promoting their interests, regardless of health or other consequences.
For decades, a patchwork of laws governed corporations' role in the electoral process. Before Citizens United, federal law forbade corporations from using their general funds to run advertisements advocating for or against a particular candidate within 30 days before a primary election or 60 days before a general election. In 1990, in Austin v. Michigan Chamber of Commerce, the Court explained the reasoning for these limitations, writing that “corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures” (see table
Important Supreme Court Decisions Related to the Participation of Corporations in the Electoral Process.).3 With several new Supreme Court justices on the bench, the new decision overruled Austin, lifting the limits on corporate-funded political advertisements. The case has led to speculation that, at times, personal ideology rather than fidelity to precedent influences the Court's more divisive decisions.The case originated when Citizens United, a nonprofit corporation, wanted to distribute its film Hillary: The Movie using video-on-demand technology during the 2008 presidential primaries. According to the Court, Hillary offered a “pejorative” portrayal of then-Senator Hillary Clinton (D-NY). To promote Hillary, Citizens United planned to run television advertisements. Lower courts prohibited it from doing so, finding that the plan conflicted with federal laws regulating corporations' political speech. The Supreme Court has now reversed these rulings, concluding that the advertisements were a form of speech protected by the First Amendment.1
Before Citizens United, corporations could finance political advertisements in advance of an election only through political action committees (PACs). Described by the Court as “burdensome” to create and “subject to extensive regulations,” PACs are funded through voluntary contributions and must file frequent, detailed reports with the Federal Election Commission (FEC). Now, instead of relying on PACs' donated monies, corporations can draw directly from their own extensive resources to fund political advertisements before an election. Citizens United similarly expanded the rights of labor unions, but unions generally have less money than corporations for political activities.
The day the case was decided, President Barack Obama called it “a major victory for . . . health insurance companies.”4 Now, as health care reform efforts continue, insurance companies can select candidates who represent their interests (e.g., increased profits or less regulation for health plans) and devote unlimited funds to advertisements supporting those candidates and attacking their opponents. Critically, these advertisements can run in the days immediately preceding an election, when many voters make a final decision. In fact, after the decision, business groups reportedly began discussing “the potential for unleashing multimillion-dollar ad drives in the last months of the 2010 elections.”5 This strategy can also be used to influence incumbents. For example, Congress is currently considering a bill to loosen restrictions on the importation of drugs, which could lead to lower prices for certain drugs. Domestic pharmaceutical companies that oppose this bill can influence an incumbent's vote with the threat of well-funded attack advertisements throughout the reelection campaign.
These new corporate spending powers may be especially important for health policy in the states, where relatively small expenditures on political advertising can influence the outcome of elections. For instance, some states have introduced bills to tax sugar-laden soft drinks as a public health measure. Beverage manufacturers can now spend unlimited funds on advertisements opposing the reelection of legislators who support these and other public health–related bills.
The federal and state governments can respond to Citizens United in several ways to ensure that the public remains informed about corporate-funded political advertisements. The federal government could strengthen disclosure laws, by requiring corporations and other groups to file reports with the FEC shortly after funding political advertisements. This information could be made publicly available immediately over the Internet. Tighter restrictions for corporations receiving “bailout” funds or federal contracts are also being considered. Some state legislators plan to introduce bills requiring corporations to receive shareholders' approval before using general funds for political advertisements. Shareholders could then determine whether their views were accurately represented. Finally, some have argued that the federal and state governments could work together to pass a constitutional amendment limiting corporations' rights to political speech.
In explaining the reasoning for the decision, the Court referred to the “marketplace of ideas,” which is critical to a democracy. The First Amendment provides important protections that allow anyone — individuals or corporations — to contribute to this intellectual marketplace. These broad speech protections, however, can create noteworthy risks. Corporations, with their substantial financial resources and recently expanded speech rights, can disproportionately contribute their ideas and potentially dominate political discourse. They can now spend unlimited dollars to advertise for or against political candidates in the critical pre-election period, with the goal of advancing their own interests through those candidates' election or defeat. When these interests concern health and medical care, experts — namely, physicians and other health care providers — should certainly do what they can to make their ideas known. Given the vast amounts of money at stake, however, individuals, acting alone, may not be able to remedy the speech imbalance.
It is true that, through their training and clinical and research experiences, health care providers develop unparalleled expertise about health and medical care, which legislators clearly value. Health care providers and public health professionals can certainly speak directly to legislators through personal lobbying or by testifying at hearings. They can act through national and state professional associations, such as the American Public Health Association and state medical societies. And it may be especially important for these groups to become even more active in the aftermath of Citizens United. Indirect efforts to provide an evidence-based perspective may include media advocacy, such as writing op-ed pieces or blogging, as some health care providers now do. But even if health care providers and public health professionals become more active participants in the marketplace of ideas, it may require a change in the law to ensure that experts lead the discussion about the future of the nation's health.
Disclosure forms provided by the authors are available with the full text of this article at NEJM.org.
This article (10.1056/NEJMp1001653) was published on March 17, 2010, at NEJM.org.
Source Information
From the Johns Hopkins Bloomberg School of Public Health, Baltimore.
- References
References
1
Citizens United v. Federal Election Commission, 2010 WL 183856 (2010).
2
Rutkow L ,Teret SP . Limited liability and the public's health. J Law Med Ethics 2007;35:599-608
CrossRef | Web of Science | Medline3
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).
4
The White House. Statement from the President on today's Supreme Court decision. Washington, DC: Office of the Press Secretary, January 21, 2010. (Accessed March 11, 2010, at http://www.whitehouse.gov/the-press-office/statement-president-todays-supreme-court-decision-0.)
5
Vada B, Stone PH. Wild west on K street? National Journal. January 30, 2010.
- Citing Articles (1)
Citing Articles
1
William H. Wiist. (2011) Citizens United , Public Health, and Democracy: The Supreme Court Ruling, Its Implications, and Proposed Action. American Journal of Public Health 101:7, 1172-1179
CrossRef
