The Supreme Court decision in Citizens United unleashed a tide of money into our political system, placing our democracy in peril. The stated rationale for opening the floodgates was that if political money meets the definition of a “political expenditure” and not a “political contribution” then it is protected political speech to such a high degree that there can be no restraint on the corporation’s right to make unlimited political expenditures. The Court saw no basis to distinguish corporations from individuals who were already permitted to make unlimited political expenditures. In addition to encouraging corporations and individuals to make unprecedented amounts of individual political expenditures, Citizen’s United has also been used to justify "dark money" flowing from nonprofit 501(c)(4) organizations and LLC's, neither of whom are required to identify their donors. These legal structures mean that wealthy individuals, corporations, and unions can all commit huge amounts of money to influencing our democracy, completely anonymously.
If we want to have the Supreme Court overrule Citizen’s United we must first reject the simplistic oft-repeated argument that the Court was wrong because “corporations aren't people” and don’t have the same first amendment right to political speech that individuals do. Corporations may not be the same type of entities as people, but there is a long line of Supreme Court authority holding that corporations have First Amendment speech rights, including to political speech. If this is the basis of an effort to have the Supreme Court overturn Citizen’s United, that effort will fail. The key to success is to focus on the related legal doctrine that there can be restraints on free speech rights when justified. The Citizen’s United Court ruled that the restraints placed on contributions were not appropriate for expenditures. This conclusion was based upon factual distinctions between contributions and expenditures made by the Supreme Court. The Supreme Court determined that corporate political expenditures were made independent of a particular political campaign and that advertisements made with such expenditures had disclaimer and disclosure requirements. But these distinctions have been eroded to the extent that they no longer make sense.
The current system of strictly limiting or prohibiting political contributions by individuals or corporations to political campaigns while permitting unlimited "expenditures" for both individuals and corporations with reporting obligations which are light as best is not sustainable. In the end, its all money being spent for the benefit of political campaigns. The volume of this money is so huge that it justifies reasonable restraints on expenditures as well as contributions of both corporations and individuals to make sure that the the immense wealth of the corporations and individuals is not used to unfairly steer the election results.
A brief review of Supreme Court cases provides the outline for such an argument. The Supreme Court has distinguished contributions, or direct gifts of money to a candidate or group, from what the Court has termed "independent" expenditures, which is defined as spending on political issues without cooperation or consultation with a candidate or political party. This distinction is found in the Supreme Court decision in Buckley v. Valeo, 424 U.S. 1 (1976). There the Court ruled on the Federal Election Campaign Act, which placed limits on both contributions and expenditures by individuals and "groups." The Court engaged in a First Amendment Analysis of the limits on contributions as well as expenditures, and concluded that the limits imposed on expenditures imposed "significantly more restrictions on protected freedoms of political expression and association than do its limits on financial contributions." In sustaining the limits on contributions, the Court made the distinction under the First Amendment that contributions serve as a “general expression of support for a particular candidate,” unlike expenditures which the Court considered true political speech. The rationale for sustaining the restrictions on contributions was that they limited the "actuality and appearance" of corruption.
Since Buckley, there have been no more Supreme Court decisions concerning contributions, so Buckley represents the current state of the law on that type of political money. But arguments over restrictions on political expenditures continued to come to the Court. In Austin v. Michigan Chamber of Congress, 494 U.S. 652 (1990), the Supreme Court upheld the constitutionality of a Michigan law providing that corporations could make political expenditures only from aggregated funds raised specifically for political purposes and not from their general treasury. The Court held that this restraint on free speech was justified in preventing corruption due to the great financial resources of corporations.
In Citizen's United v. Federal Election Commission, 558 U.S. 310 (2010), the Court reversed Austin based on its view that there was no sufficiently compelling reason to restrain corporate political expenditures. The Court noted that wealthy individuals had the right to make unlimited political expenditures and therefore corporations should too. While the majority described the right to political expression in rhapsodic terms, the Court made clear that, in order to be free of restraints, the corporate political expenditures needed to made "independent” of a particular campaign, and that disclaimer and disclosure requirements applied to any advertising.
The key to overruling Citizen’s United is to demonstrate that there is no relationship between the tidy distinctions made by the Supreme Court and the reality of the campaign world. In a subsequent post, I will outline why corporate expenditures are not truly independent of campaigns and are indistinct from contributions and that dark money means that you don’t know who is responsible for an ad.
This is the first in a two-part series on Citizens United and the Supreme Court. To read the second half of this piece, please click HERE.