January 25, 2010

The Future of US Elections and the Environment after Citizens United? Look at Texas and Its Politicized Agencies

The Supreme Court’s decision in Citizens United was not entirely unexpected, but it is appropriately seen as a breathtaking change in the way elections work in this country. The Supreme Court struck down federal campaign finance rules that limit corporate (and general organizational) spending on campaign finance ads to help or defeat candidates.

What can we expect now? One need look no further than Texas, which has no campaign restrictions in any statewide races. In Texas, large corporations and individuals have given millions of dollars to candidates and ads supporting them in one election cycle.

While this can be hugely influential on state legislation, at least legislation remains ostensibly open and in the public eye. Texas does have laws that may be seen as more favorable to corporations (such as low limits on medical malpractice compensation and a conservative tax structure), but all in all, the Texas legislative code doesn’t look all that different from other states. That's in part because many laws important to progressives, such as environmental laws, are mandated by the federal-state joint programs such as the Clean Air Act. But this doesn’t mean that unlimited contributions don’t affect the state of the environment.

So what's the hidden danger from Citizens United? The influence on the administrative state. Even with laws on the books, administrative agencies may choose to not act on enforcement or may only impose nominal penalties on violations, and this is what we have seen in Texas. Is this related to campaign finance? According to the Houston Chronicle, many directors of Texas state commissions, such as the powerful Railroad Commission, which controls state water resources, have given tens of thousands of dollars to current Republican governor Rick Perry (totaling nearly $5 million). In cases in which commissioners refused to give more money or sought to support another candidate, they have been fired by the Governor. Environmental enforcement in the state has been weak. Texas has low environmental compliance rates, and low average penalties for environmental violations. The state also is operating a State Implementation Plan under the Clean Air Act that the EPA says is unlawful.

The Supreme Court may not think that financial access to elected officials means that the elected officials are “corrupted,” but in Texas it certainly gives the appearance that money talks and buys influence on administrative decisions important to the donors.

Whether or not we start seeing something similar at the federal level remains to be seen. We have had prior periods of weak environmental enforcement at the federal level, and robust citizen enforcement suit provisions have proved somewhat useful in forcing at least minimal action. It's also possible that Citizens United will invigorate corporate governance, which could empower shareholders to effectively control large campaign expenditures. In any event, I hope that tomorrow’s Washington doesn’t look like today’s Austin.

Victor Flatt, CPR Member Scholar, Taft Prof. Environmental Law, UNC School of Law. Bio.

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