A Path to Overruling Citizens United: Part 2


A Path to Overruling Citizens United: Part 2

This is the second of a two-part piece on reversing the Supreme Court's Citizens United decision. To read the first half of this post, click HERE.

As I’ve outlined in the first part of this post, the Supreme Court’s argument for allowing unlimited campaign expenditures hinges on the differences between political contributions and independent expenditures. The Court sees contributions as direct monetary support for a political campaign, while expenditures must be made independently of any campaign or candidate, with disclaimer and disclosure requirements. A closer look, however, reveals that the distinction between the two is blurry at best.

First, the idea that individual contributions are a statement of support for a particular candidate and not political speech is unsound. In many ways both contributions and expenditures are both political speech. Particular candidates stand for particular positions. Therefore a contribution to a candidate is an expression of support for their positions. For example, I might vote for a candidate because he/she supports a women's right to choose. In 1979, when Buckley was decided, there were records available on political campaign contributions, but they were difficult to access. Now such records are available on-line. Sites supported by a state or the federal government report on the political party of the candidate voted for. Various websites try to determine if a person's political contributions show that they "lean" right or left. See, e.g. individual-contributors.insidegov.co. The wide availability of this information has transformed the contribution into political expression.

Because the Supreme Court has accepted that contributions may be restricted because large contributions create at least the appearance of undue influence on our political process, if expenditures are truly not much different from contributions, then there seems to be a convincing argument that expenditures can also be limited, particularly if they are not truly "independent" from the campaigns they support. For the same reason, equating corporations with wealthy individuals can be used to support restrictions on both individuals and corporations. As the Supreme Court noted in Citizens United, wealthy individuals have the capacity to make the same outlays of money as many corporations do. The increasing income disparity in the United States have given rise to a group of multi-millionaires and billionaires whose financial resources are staggering and exceed that of many corporations.  But the key to restricting all expenditures by individuals and corporations is to show that these expenditures are not made independent of the campaigns they support.

Super PACs and campaigns, which are legally forbidden from collaborating, have come up with a number of clever strategies to circumvent this requirement. For example, politicians can announce that they might run, and because they are not officially a candidate and have no official campaign apparatus, they can work directly with super PACs despite it being stunningly obvious that they are going to run. Jeb Bush used this strategy in 2014 to raise over $100 million before officially announcing his presidential campaign. Candidates are not permitted to appear in footage shot for a super PAC, but if that footage is recorded before the candidate has officially declared, then it’s technically allowed. Candidates also record stock footage and post it online for “the public,” so super PACs can use it for ads.

Candidates will also often make odd statements to the press which are really directed at their super PACs, and “leaks” from within their campaigns often guide the strategy of supporting organizations. And of course the amount of information about a campaign, including from the campaign's own website, allows supporting super PACS ample opportunities to coordinate with the campaign without any additional communication.

Even more disturbing than these attempts to circumvent the law is the Federal Election Commission’s complete inability to enforce the laws already in place. The FEC commission is evenly split along partisan lines, so essentially every vote ends in a 50-50 split, preventing any action. The FEC is not only unable to close the creative loopholes campaigns discover, cannot even punish campaigns for blatantly breaking the law. In fact, FEC Commissioner Ann Ravel recently resigned from her position in protest over the Commission’s dysfunction.

The above facts demonstrate that corporations and wealthy individuals have focused on only one portion of the holding of Citizen's United- no limits can be placed on political expenditures by corporations or individuals-while ignoring the requirements set forth by the Court for permitting unlimited expenditures. These are the absence of coordination between the entity making the expenditures and the campaigns, and notification of the source of the money used in advertisements. Obviously coordination is going on all of the time, and there is no effective means to prevent this. The use of dark money also means that citizens viewing advertisements have no idea who is really funding the advertisement.

Because the justifications underlying Citizen's United have proven to be unworkable, there is a solid legal argument for enacting a statute on either the state or federal level which restricts contributions and expenditures by everyone – individuals, corporations, not-for-profits, PACs, labor unions, etc, and provides for more public funding. This statute would undoubtedly be challenged under Citizens United, but that would provide the opportunity to demonstrate why later developed facts support a reversal of this case. While this result cannot be guaranteed, the argument is sound and should be given consideration by the Supreme Court. Short of a constitutional amendment, this is the best chance there is to limit the influence of big money in our politics.

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