There are very few Supreme Court cases that are as consequential and controversial as National Federation of Independent Business v Sebelius, the recent challenge to the Affordable Care Act (ACA), and Citizens United v Federal Election Commission, which struck down congressional limits on corporate and union spending on political advertising. The ACA ruling, in which the ACA’s individual mandate was upheld (as a tax), allows the nation to continue on the path of health care reform, even if the Supreme Court did potentially undermine Medicaid expansion. But Citizens United is now being deployed to repeal the ACA through a sustained campaign bankrolled by big corporations.
Corporations are spending millions of dollars on ads attacking President Obama’s health care reform. Now that the Supreme Court has upheld the ACA, the next wave of political opposition is directed toward its repeal—by building up a groundswell of public opinion and removing from office elected officials who supported it.
Political opposition to existing law and policy is well within the bounds of a liberal democracy that prizes the freedom of expression. But what makes this new wave of attack ads so perverse is that voters have no way of knowing who is behind the attacks. In fact, behind the scenes, the Washington Post reports, big corporations with vested commercial interests in overturning health care reform, such as health insurers (Aetna) and drug and biotechnology companies (the Pharmaceutical Research and Manufacturers Association, or PhRMA), are heavily financing the ad campaign. The motivation for these groups is not to improve social policy but rather to maximize profits for their shareholders.
Distorting the Debate
When corporations spend large sums of money to repeal health care reform and do so with anonymity, without any rules governing disclosure or conflicts of interest, it distorts the debate. Ordinary citizens who benefit from the reform in so many ways—for example, from enhanced access to health care and from provisions that prohibit insurers from denying coverage because of preexisting conditions or from charging sick people more than healthy ones—cannot begin to match corporate funding.
Let’s take a step back and explore how Citizens United and Congress itself have brought about these perverse results. In Citizens United, the Supreme Court held that the First Amendment prohibits government from restricting political expenditures by corporations and unions, although the state may lawfully require disclosure. Campaign finance law, consistent with Citizens United, permits super PACs (political action committees) to raise and spend unlimited sums for political causes as long as they disclose the sources of their donations.
To circumvent these transparency rules, according to a joint investigation by the Center for Public Integrity and Center for Responsive Politics, rich individuals and corporations are increasingly giving their largess to 501(c) nonprofit organizations. These “social welfare” groups, which are exempt from taxation, can raise and spend unlimited sums to influence policy without ever revealing who donated the funds.
Although nonprofits may not spend on “politics,” where is the line between policy and politics? When so-called social welfare groups in the midst of a presidential election attack a law (a law actually designed to promote social welfare) that is closely associated with an incumbent president and the Democratic Party, how can that not be political? When rich health care corporations fund those attack ads and need not disclose their donations, how is that apolitical? What social value is achieved by granting these groups generous tax exemptions for seeking repeal of health care reform? In effect, social welfare groups are engaging in politics, partly using taxpayer funds to do so. (A tax exemption is, in effect, no different from a public expenditure.)
What is worse is that the activities and purposes of nonprofits and super PACs cannot be rationally distinguished. By giving funds to social welfare groups, rich corporations are able to hide their identities. In turn, the very same social welfare groups “launder” the funds back through super PACs, which then report only the nonprofit as the donor, rather than the corporation that actually gave the money. The net result is that the public is left in the dark—exactly the opposite of what the First Amendment was designed to achieve.
The Supreme Court is harmfully conflating corporations with people and money with speech. Citizens United views a corporation merely as an association of individuals. Even if it were possible to argue that all shareholders (the collection of individuals) actually all had similar beliefs, they are organized to return high profits, not to debate social policy. People invest in corporations to make money, and the corporate structure is designed explicitly to achieve that goal. That is hardly the same as a collection of individuals seeking to express a political idea, which is the purpose of the First Amendment.
“Money talks,” the saying goes. But the Supreme Court has taken that saying to a logical absurdity, which is that money is speech. What is more likely is that an overwhelming amount of money distorts and overwhelms the marketplace of ideas. The “money as speech” proposition has been a death knell for a great deal of health and social policy, as the Supreme Court every year more aggressively defends commercial speech. The result is that the Court often strikes down public health regulation of tobacco, alcohol, and other harmful products. The most high-profile case winding its way through the courts is the challenge by “Big Tobacco” to Food and Drug Administration regulations requiring graphic package warning labels.
The greater truth is that corporations are not people and money is not speech. Quite the reverse, as these pernicious ideas hide the identity of the speaker and allow the super rich to drown out a fair and reasoned debate. Health care reform is too important to allow big corporations to undermine it through a disguised and lavishly funded campaign.
About the author: Lawrence Gostin is University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center, and Director of the World Health Organization Collaborating Center on Public Health Law and Human Rights.
About The JAMA Forum: To provide ongoing coverage throughout this election year, JAMA has assembled a team of leading scholars, including health economists, health policy experts, and legal scholars, to provide insight about the political aspects of health care. Each JAMA Forum entry expresses the opinions of the author but does not necessarily reflect the views or opinions of JAMA, the editorial staff, or the American Medical Association. More information is available here and here.
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