Self-Interested Polling, Questionable Results

By February 18, 2010Briefly Legal gave big play Wednesday to a new poll that included questions about the recent U.S. Supreme Court decision in Citizens United v. FEC, which overturned the statutory ban on independent political advocacy by corporations and unions. The limits imposed by the Bipartisan Campaign Finance Reform Act unconstitutionally infringed upon First Amendment rights, the court ruled.

The online story was headlined, “Large majority opposes Supreme Court’s decision on campaign financing“:

Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.

Eight in 10 poll respondents say they oppose the high court’s Jan. 21 decision to allow unfettered corporate political spending, with 65 percent “strongly” opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.

Unfettered corporate spending? No. Direct corporate campaign contributions to political candidates remain prohibited. The two questions posed in the poll also simplify the ruling to the point of inaccuracy:

35. Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

36. Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns? Do you feel that way strongly or somewhat?

First, we doubt many in the public are aware of the Citizens United ruling, so a polling story that emphasizes the “strong bipartisan sentiment” for limits oversells the case. As Jeff Patch of the Center for Competitive Politics wrote in a news release, “Campaign finance is an incredibly complex legal framework, and most Americans have an incentive to remain rationally ignorant about the laws and regulations at issue.” (It’s an excellent release that rebuts the ABC/Post’s polling, also noting the vociferous campaign some political interests have mounted against the decision.)

We’d argue, as well, that polling questions should include reference to the U.S. Constitution or the First Amendment, since speech is at the heart of the issue. You could just as well ask: “Do you support or oppose the recent ruling by the Supreme Court that says the U.S. Constitution protects the right of corporations and labor unions to spend money in support of candidates before an election?” The public’s response would be different. Add in the phrase “free speech rights” and the response would change again.

As is typical of the coverage of this issue, the Post account also omits the self-interest of the newspaper industry in supporting limits on corporations’ speech. The McCain-Feingold campaign finance law specifically exempted the media from its restrictions on political advocacy.  Newspapers can spend money to pay the writers and other staff, supply the equipment, heat the building and distribute the product that includes an editorial before an election that says, “This is a bad idea and you should vote against Candidate X.” Any non-media corporation that did exactly the same thing would have violated the law. McCain-Feingold magnified the power of newspapers and their editorials.

Hans von Spakovsky of the Heritage Foundation has just released a new Legal Memorandum that discusses many of these issues from a legal and Constitutional perspective, “Citizens United and the Restoration of the First Amendment.” The article examines the legislative various proposals in the wake of the Supreme Court’s ruling to invent some new limits against advocacy, and concludes they still run afoul of the First Amendment. Unlike the ABC/Post poll, his arguments are founded in the U.S. Constitution.

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