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
Is Tom DeLay's Criminal Conviction Unconstitutional?
Last week, a Texas jury convicted former House majority leader Tom DeLay of money laundering and conspiracy to commit money laundering. The money laundering at issue wasn’t what one normally thinks of as money laundering. It was based on DeLay’s evasion of a Texas statute prohibiting direct corporate contributions to political campaigns and candidates. At trial, the government proved that through his political action committee, DeLay collected $190,000 for a group affiliated with the Republican National Committee. That group subsequently distributed the funds to legislative candidates in Texas. DeLay now faces a possible sentence of five years to life imprisonment.
As in Texas, federal law also prohibits direct corporate contributions to campaigns and candidates. After Citizens United v. FEC (2010), there is a serious question as to whether such laws are constitutional. Citizens United held that a provision of the federal Bipartisan Campaign Reform Act (BCRA), which prohibited corporations and unions from using general treasury funds in the weeks before an election to independently advocate for the election or defeat of a particular candidate, violated the First Amendment. The Court specifically did not consider whether there were also First Amendment limits on the ability of the government to ban or restrict corporate contributions to candidates, noting that “Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.”
Nonetheless, Citizens United contains the seeds for a possible future ruling that limitations on corporate contributions to candidates and campaigns--or at least limitations that do not apply to individuals—also violate the First Amendment. Those seeds are found in the Court’s treatment of the government’s interest in preventing corruption—-both as it was asserted by the government in Citizens United and accepted by the Court in earlier cases.
Citizens United overruled Austin v. Michigan Chamber of Commerce (1990), which upheld a state law prohibiting corporations from using treasury funds to run ads supporting or opposing candidates. The Court in Citizens United explained that Austin was inconsistent with Buckley v. Valeo (1976). Buckley upheld the limitations, in the Federal Election Campaign Act (FECA) of 1972, on direct contributions to candidates but it invalidated an expenditure ban that applied to individuals, corporations, and unions. The Buckley Court reasoned that while the risk of corruption supported contribution limits, no such interest applied with respect to expenditure restrictions. A separate provision of FECA prohibited independent expenditures by corporations and unions but that provision was not at issue in Buckley. In Citizens United, the Court reasoned that had the Buckley Court considered the corporate/union provision, it would have also held it unconstitutional. Therefore, Buckley supported invalidation of the challenged statutory provision in Citizens United.
There are, of course, grounds to distinguish, as Buckley did, political contributions from expenditures. While contributions and expenditures both involve forms of political participation, running an ad supporting or opposing a candidate is more clearly speech (according to the Court in Citizens United, BCRA’s limitation was “an outright ban on corporate political speech”) than is contributing to a candidate. But whether the Court in the future will stick to the expenditure/contribution distinction is now uncertain.
In Citizens United, the Court both restored and weakened Buckley. The Court invoked Buckley to reject the government’s argument that it needed to limit expenditures in order to prevent corruption. In the course of so doing, the Court narrowed Buckley’s concept of corruption to mean the problem of the quid pro quo—buying of votes—rather than a more general problem of influence. Here is Justice Kennedy’s description of corruption in his majority opinion in Citizens United:
When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: “Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.” McConnell, 540 U.S., at 297 (opinion of Kennedy , J.). Reliance on a “generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.” Id., at 296.
The references in the above quotation to “contributors” and "contribution" are telling. If the government’s interest in restricting contributions is limited to preventing a quid pro quo, the government will not be able to justify laws that restrict contributions entailing “generic favoritism or influence.” Those things, Kennedy tells us, are an inherent part of our democracy.
As Justice Stevens noted in his dissent in Citizens United, the majority’s notion of corruption uniquely hamstrings the government’s regulatory powers. “Even in the cases that have construed the anticorruption interest most narrowly,” Stevens wrote, “we have never suggested that such quid pro quo debts must take the form of outright vote buying or bribes, which have long been distinct crimes. Rather, they encompass the myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of, some outlay of money the parties have made or will make on behalf of the officeholder."
As for the chances of demonstrating that the quid pro quo problem really exists, Justice Kennedy in Citizens United is even skeptical of the Buckley Court’s own conclusion with respect to contributions:
With regard to large direct contributions, Buckley reasoned that they could be given "to secure a political quid pro quo,” and that “the scope of such pernicious practices can never be reliably ascertained.” The practices Buckley noted would be covered by bribery laws if a quid pro quo arrangement were proved. . . . [F]ew if any contributions to candidates will involve quid pro quo arrangements. The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption.
This is the stuff of which new case law is made. After Citizens United, the Court can say the following in a case challenging laws restricting corporate contributions:
In Buckley, we held that the government can act to pursue its legitimate interest in preventing vote-buying, including by limiting or preventing corporate contributions that result in a quid pro quo. However, a general law prohibiting all corporate contributions to candidates and campaigns is so far removed from that interest that it cannot be sustained on this basis. Contributing to a candidate or to the candidate’s campaign is an important way in which Americans make their political voices heard. Few citizens have the resources to finance a television ad but all citizens can contribute funds to their preferred candidates. Just as the government’s concern with corruption does not justify general limitations on corporate expenditures during elections, see Citizens United, that same concern is insufficient to justify a law barring wholesale corporate contributions to candidates and their campaigns.
And, should Tom DeLay’s case work its way to the Court:
Because the Texas law banning corporate contributions to political candidates violates the First Amendment, the judgment below is reversed and the petitioner’s conviction and sentenced are vacated.