an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As we appear to be a few hours away from the most significant campaign finance, and perhaps First Amendment, ruling of the Roberts Court, it would be the height of irresponsibility to speculate what the decision means before it has been issued. So, here goes. Assuming the Court eschews the minimalism it has exercised in so many election law cases, knocks down the corporate/union electioneering provisions of the BCRA, and overturns Austin v. Michigan Chamber of Commerce, several "frames" present themselves as ways to think about the implications of the decision.
1. Opening the floodgates If the Court opts for a broader ruling, the immediate reaction from critics will be that this opens the floodgates to corporate money in the 2010 congressional elections and beyond. Politicians will be even more beholden to corporations, some have suggested, now that corporations can hold the gun of independent spending to politicians' heads and threaten to pull the trigger (i.e., spend money to defeat them) unless a politician votes a certain way. If you thought corporations and unions had a stranglehold on the health care debate, some will argue, imagine their influence when they can more directly participate in elections.
The truth is that the gates to corporate and union spending were opened much of the way by the Court's decision three years ago in Wisconsin Right to Life v. FEC (WRTL). That case held that advertisements capable of an interpretation other than an admonition to vote for or against a candidate are protected under the First Amendment. In other words, even before Citizens United, a corporation could spend all its treasury money on ads days before an election urging listeners to "call Congressman X and tell him his liberal policies are destroying America." Indeed, such ads, rather than the rare ones that used magic words of express advocacy, formed the bulk of the relevant legislative record used to support BCRA's electioneering ban. (At the risk of greatly oversimplifying: BCRA bans corporate and union treasury funds from being spent in the month or two before a federal primary or general election on ads that "refer to a clearly identified candidate for [federal] office." The regulation sweeps in bona fide issue ads that happen to mention candidates' names, as well as express advocacy that urges someone to vote a particular way.) Political ads that use words of express advocacy are often thought to be less effective than those that do not.
Citizens United, if it knocks out what is left of the rule governing advertisements post-WRTL, would expand protection beyond not-too-subtle advocacy to include ads that more clearly express opposition or support for a candidate.
For what it is worth, I tend to think corporations find campaign ads to be an inefficient way of influencing politics, and that much of corporations' historic participation in elections was more the result of politicians' shaking them down, rather than attempts to influence outcomes. Even in the pre-BCRA period, corporations spent something like eight times as much on lobbying as they did on campaign related expenses. Still, we should expect tens of millions of corporate and union treasury dollars to be spent in this fall's elections. In absolute amounts that seems like a lot, but as a share of the total spent on elections it will be a small fraction. Of course, if you are the candidate in whose race millions of corporate or union dollars are spent, you only care about the absolute numbers.
The opinion's significance will be greatly magnified, however, by the doubt it might cast on the soft money contribution restrictions of the BCRA, which ban corporate and union treasury contributions to political parties. My guess is that, in their heart of hearts, five members of the Court want to strike those down as well, even though we are a long way off from that happening. Citizens United could erase many of the distinctions between corporations and other voluntary associations by questioning the special corruption threat ("the corrosive and distorting effects of immense aggregations of wealth amassed through the corporate form") the Court has recognized as flowing from corporate participation in elections. If the special corruption threat posed by corporations and unions is taken away, then it becomes more difficult to justify a ban, as opposed to simply a limit, on their contributions to parties.
Given the Court's recent cert grant in Doe v. Reed and its intervention concerning the YouTubing of the Prop 8 case in San Francisco (which, in an extraordinary move, cited some of the briefs in Citizens United, perhaps to tease Ted Olson who is a lawyer in both cases), it will be very interesting to see how they deal with the disclosure issue in Citizens United. I had always thought this was a nonstarter at the Court, given that disclosure has historically been about the constitutionally safest form of campaign finance regulation. However, concerns about retaliation and intimidation following Prop 8 may have led skeptics on the Court to take this argument more seriously.
3. The Most Significant Effect of the Replacement of Justice O'Connor
Because campaign finance law is less salient and more difficult for the public to understand than other areas of constitutional law, too little attention has been paid to the fact that in this arena the Roberts Court has already had its greatest impact. Although one can see the effect of Justice O'Connor's retirement and replacement in the Roberts Court cases dealing with late term abortion and school desegregation, for example, in the campaign finance cases her departure has proven most transformative. In all three campaign finance cases it has considered -- Randall v. Sorrell, Wisconsin Right to Life v. FEC, and FEC v. Davis -- the Roberts Court has struck down or significantly narrowed the regulations under review. Citizens United represents just the latest retrenchment since McConnell v. FEC, in which Justice O'Connor joined a five-member majority to uphold the major provisions of the BCRA.
4. Justice Stevens
Justice Stevens, who clings to the belief that money is property not speech, has been the most frequent supporter of campaign finance laws. Indeed, he has even suggested (in FEC v. Davis) that rules regarding campaign speech might mirror the rules in a courtroom, with each side being given a specified amount of time to make their case. Although sometimes garnering the vote of Justice Ginsburg, Justice Stevens has held to an extreme First Amendment outpost in the campaign finance cases. Even though I almost uniformly disagree with him, his opinions in these cases provide a much-needed voice in the debate. With his likely departure, the Court will lose its most pro-reform advocate. I wouldn't be surprised if his retirement were announced at the same time as his opinion in Citizens United, which is likely to be a swan song in an area of the law about which he has felt a unique passion.
5. Grain, nay Entire Shaker, of Salt
Of course, all of this speculation is premature. When the Court decides Citizens United, it could avoid all of the major issues in the case and decide it on the many narrow statutory or constitutional grounds that are available. A substantial majority will vote against the government's position in this case, even if only five votes might be available for the most sweeping constitutional holding.
Given the Court's repeated headfakes in the case, they might not even issue the decision today. If they do decide the case as expected, however, it is important to recognize this as the latest, and far from the last, in a series of important rulings on campaign finance. Each decision it has issued in this area has presaged a more transformative turn just a few years down the road.] Posted
by Nate Persily [link]