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Citizens United  |  A Conversation with Bob Bauer '76 and Trevor Potter '82 
Citizens United Vindicates Fundamental First Amendment Principles
Some Answers from a Constitutional Perspective  |   The Supreme Court's Shift

Citizens United: First Amendment Protection or Pandora's Box?

by Cullen Couch

Supreme Court Building

Since the earliest days of the Republic, money has given voice to politics, but it wasn’t until the Buckley decision in 1976 that the Supreme Court acknowledged that limiting spending limits speech itself, a fact that everyone this side of a voting booth already knew. Politics has always been about raising money to get votes, whether through bribery, providing “services” to politicians, or building powerful national campaigns. Andrew Jackson’s patronage system in the 1830s, political boss Mark Hanna’s corporate assessments in the 1890s, and Richard Nixon’s Committee to Reelect the President (with its ironic acronym, CREEP) all shared the same goal: raising money. Lots of it.

With a restive public suspicious of corporate wealth, the 59th Congress in 1907 began its first halting attempts to prevent the corrupt influence of money. It passed the Tillman Act, prohibiting direct contributions to federal campaigns by corporate and banking interests. In 1910 Congress passed the Federal Corrupt Practices Act (FCPA) imposing campaign contribution limits and disclosure requirements. In 1925 Congress broadened contribution limits and increased disclosure requirements. In 1947, the Taft-Hartley Act extended the corporate ban on contributions to unions. But without effective enforcement mechanisms and defanged by loopholes, all these efforts (and others) were largely symbolic.

Finally, in 1971, Congress took another stab at campaign finance reform by repealing FCPA and passing the Federal Election Campaign Act (FECA) designed to increase disclosure of contributions to federal campaigns. FECA also established public funding for presidential primaries and elections.

Then came Watergate. The scandal’s lurid tale of bundled cash and petty burglary caused a public uproar. In 1974 Congress responded by adding amendments to FECA that created campaign contribution limits and a new Federal Election Commission with authority to enforce the Act. Almost three decades later, reacting to the oversized roles of “soft money” and “issue ads” in campaigns, Congress passed the Bipartisan Campaign Finance Reform Act of 2002 (McCain-Feingold) that banned “soft money” to political parties, prohibited certain advertising within 60 days of an election that mentioned a candidate for federal office by name, and restricted the use of “sham issues ads” by political parties, corporations, and unions.

According to prize-winning legal historian Ted White, a David and Mary Harrison Distinguished Professor, “the primary constitutional rationale for Citizens United goes back to a line of decisions beginning with Buckley v. Valeo (1976), in which the Court determined that campaign contributions and expenditures were a category of highly protected political speech and signaled that it was becoming increasingly skeptical of rationales for restricting them.” [more] Starting with Buckley, the Court has tread a fine line between permitted regulation and constitutionally protected speech: *

*Here’s a tip for understanding campaign finance law: keep clear the distinction between contributions to a campaign and independent expenditures on behalf of a campaign. Contributions have always been subject to statutory limits because of the real possibility of and public interest in preventing quid pro quo corruption. In contrast, independent expenditures have enjoyed broader First Amendment protection, especially since Citizens United, because the anti-corruption rationale does not apply.

Notice the trend? The majority supporting legislation regulating corporate speech has been slowly draining away. In Citizens United, it finally went dry. A new 5-4 majority (in fact, the same justices who decided Wisconsin Right to Life) gave full-throated First Amendment protection to corporate and union “independent expenditures” on behalf of political candidates.

Swatting away the anti-corruption rationale at the heart of their earlier jurisprudence, Justice Kennedy, writing for the majority, overruled Austin and parts of McConnell and declared, “This Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the public to lose faith in this democracy.”

In a stinging dissent, Justice Stevens pointedly disagreed with Kennedy. “The majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA [McCain-Feingold], a record that stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other’s backs—and which amply supported Congress’ determination to target a limited set of especially destructive practices.”

While Citizens United leaves intact certain disclosure requirements and limits on campaign contributions (where quid pro quo corruption is a clear threat), it allows corporations and unions independently to spend unlimited amounts from corporate or union treasuries to support or attack candidates for federal office.

A few months after Citizens United, the D.C. Circuit Court of Appeals, in Speechnow.Org, ruled that contribution limits to independent expenditure groups were also unconstitutional, setting up what came to be known as Super PACs. Whereas the PACs originally permitted by FECA limited individual contributions, the new Super PACs can accept unlimited contributions from individuals and corporations, and spend as much as they want on “uncoordinated” political advocacy.

What has actually changed? The Court concluded that there was no logical basis for distinguishing “corporate” from “individual” independent expenditures since, by the Court’s definition, neither kind can cause corruption (which, in turn, gave rise to the generally inaccurate claim that the Court gave corporations the same constitutional rights as individuals). Extending the Court’s reasoning, the D.C. Circuit concluded that since individuals can give advocacy groups unlimited amounts, so can corporations. And since those advocacy groups themselves are non-profit corporations, they can spend unlimited amounts promoting their views.

No one can say if the Court anticipated the de facto coordination between Super PACs and their candidates that occurred in this year’s Republican presidential primaries. The leading Republican candidate did not deny it, and President Obama, with an eye toward the general election, has not condemned it. But even if the Court did foresee the role of Super PACs, it is unclear whether it would have mattered.

Nor do the disclosure requirements that the Court upheld have much bite. The FEC remains deadlocked; the three Republicans on the six-member panel oppose enforcement.  And individual donors can remain anonymous if they simply funnel their contributions to a Super PAC through a 501(c)(4).  Even if donors are disclosed, it often occurs after the election when it doesn’t really matter anymore.

Protester and police
Poilice arrest demonstrators after they tore down a barricade and took to the steps of the U.S. Supreme Court building on the aniversary of the Citizens United decision, in Washington D.C., January 20, 2012.

Photo Reuters/Jonathan Ernst

Supporters of Citizens United claim vindication after long arguing that campaign finance regulation is, on its face, an unconstitutional violation of free speech imposed by incumbents interested only in protecting their seats. They demanded a clear, uncomplicated, bright line defending political speech, and they got it.

“I believe that the First Amendment guarantees freedom to speak about politics and about candidates for office,” says Lillian BeVier, a First Amendment scholar and retired David and Mary Harrison Distinguished Professor of Law. “The Amendment stands as a substantial though not impenetrable barrier to legislation that limits political speech.  Free political speech is valuable both because freedom is good in itself and because permitting incumbent legislators to regulate political speech—by regulating what can be said and who can pay for speech about candidates — carries a genuine risk of shielding incumbent office-holders from the efforts of challengers to unseat them.”

James Stern ’09, former clerk to Justice Kennedy and now at the Law School as aresearch assistant professorand Olin Searle Smith Fellow in Law, says the clarity of a straightforward First Amendment analysis detracts from the more nuanced arguments for regulation. “It’s fairly easy to articulate the principle that a democratic government shouldn’t be trying to re-engineer the market for political speech,” he says. “I think opponents have a harder time because there’s no clear sense of where the lines should be drawn.”

Critics call Citizens United an ideological assault on the public’s right to prevent political corruption and maintain the integrity of elections. Trevor Potter ’82, former chairman of the Federal Election Commission and general counsel of the McCain presidential campaign, now heads Caplin & Drysdale’s political law practice. He says, “There were five justices who wanted to make this decision and they were going to turn this case into the one to do it.  They had been four in McConnell and gained a vote with the retirement of Justice O’Connor and the arrival of Justice Alito. One of the distressing things was their rush to this decision. There were many things in the case that they didn’t understand, weren’t briefed on, and didn’t have time to ask questions about. Those are coming back to bite us now.”

 “I thought it was badly misguided,” adds Bob Bauer ’76, former White House Counsel and now general counsel of the Obama campaign. “As constitutional decision-making goes, it’s more aggressive than it needed to be, and ultimately what we are left with isn’t satisfactory.” 

No national campaigns have been waged since the Court decided Citizens United, so it is hard to predict the nature and extent of its actual effect on an election, its historical importance in the Court’s jurisprudence, or whether the “unfettered discourse” so treasured by the Court and made possible by a new flood of money becomes an unbearable distraction, further reinforcing public cynicism about the political process.

From a purely partisan perspective, most Republicans support the decision. Most Democrats don’t. That’s not surprising given their different views on government regulation. But it remains to be seen whether Citizens United will favor or disadvantage either side. If nothing else, the enormous individual contributions to Super PACs in the Republican primaries have kept candidates going long after they would have had to bow out before Citizens United.  That alone has changed the game.

To place Citizens United in context, we asked White to discuss its historical importance to Supreme Court jurisprudence. We also asked Potter and Bauer to talk about the Court’s possible response to the coordination issue that emerged in the Republican primaries, as well as to drill down into the decision’s political and practical implications.  Finally, we invited Bevier, long a critic of campaign finance regulations, to argue why Citizens United vindicates fundamental First Amendment principles.

Money – who has it, who doesn’t, and whether government should even care – has become a national irritant. That won’t end with Citizens United, and perhaps that’s a good thing.  There are, after all, worse things than money, which is exactly the point of the debate.

Citizens United  |  A Conversation with Bob Bauer '76 and Trevor Potter '82 
Citizens United Vindicates Fundamental First Amendment Principles
Some Answers from a Constitutional Perspective  |   The Supreme Court's Shift