Citizens United Vindicates Fundamental First Amendment Principles
Some Answers from a Constitutional Perspective | The Supreme Court's Shift
Citizens United: A Conversation with Bob Bauer ’76 and Trevor Potter ’82
UVA Lawyer first profiled Bob Bauer and Trevor Potter in a Spring ’09 story about their experiences as general counsel for the Obama and McCain presidential campaigns, respectively. Today, both remain heavily involved in the national political scene, Bauer again as general counsel of the president’s re-election campaign, and Potter as head of Caplin & Drysdale’s political law practice and the founding president and general counselof the Campaign Legal Center, a Washington, D.C. based nonprofit focused on campaign finance issues in the courts and before the Federal Election Commission.
With the Citizens United decision bringing election law back into the news, we joined them in Bauer’s office at Perkins Coie in Washington to discuss the decision. The following is the lightly-edited transcript of that conversation.
Q: What is your overall impression of Citizens United?
Bauer: I thought it was badly misguided. Had the Court been inclined to reach the decision it did, it could have reached it by a number of other routes. Instead it chose to take on this long introduction explaining why it can’t avoid confronting the Austin case, which it then proceeds to overrule. As constitutional decision-making goes, it’s more aggressive than it needed to be, and ultimately what we are left with isn’t satisfactory.
Potter: It’s a great case for law students. It is Supreme Court civil procedure at its oddest in some ways. Both Bob and I could easily spend an hour describing why the Court shouldn’t have reached this issue, that there were other ways to deal with it, how the majority overturned traditional notions of stare decisis, and procedurally how they got to this series of special briefings and arguments.
In my view, 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.
What actually is an “uncoordinated expenditure”? The Court in Buckley says it's something that, by definition, is “wholly independent” of a candidate or a party committee. In Buckley, there was no history of trying to figure out what's coordinated and uncoordinated. But by Citizens United a 30 year history of regulatory attempts to define coordination existed. If the majority had focused on that record and the FEC rules and statutes, they might have concluded that the line was not where they thought it was, or was not easily drawn.
Then there's the whole section of the opinion that talks about how, for the first time, corporate spending will now be allowed but it will be fully disclosed. I know they didn't have any briefing on that issue. They didn't know what the FEC had done to foil disclosure. They didn't know about the regulatory battle over the meaning of the existing disclosure provisions in McCain-Feingold.There was no briefing about how their thinking didn't apply to some organizations. I think this rush to make a major decision with very large consequences has backfired.
Bauer: In keeping with our long-standing rivalry, may I disagree with Trevor? A majority had decided to very sharply trim Buckley, particularly the distinction between contributions and expenditures, to as sharp and narrow a set of lines as possible to give the concept of independence the most robust form of protection.There is a remarkable set of passages in the opinion itself in which the Court talks about how complicated the law has become; that to some degree the constitutional offense of our campaign finance laws resides in the proliferation of very complicated rules that are elaborated in pages and pages of FEC pronouncements. I think they were so bent on delineating clear and simple boundaries that they wouldn’t have been terribly interested in drawing complex distinctions between types of coordination that candidates might engage in with independent spending groups. I think they wanted to take a blunderbuss approach and that’s exactly what they did.
Q: If they had known of the de facto coordination that has happened in the Republican primaries, you think they would have come to that conclusion?
Bauer: That’s my view.
Potter: I’ll use the same caveat as Bob. It’s very hard to know what’s in the justice’s minds on this stuff. It may be that they’re in a different place now than they were then, meaning that at the time they wouldn’t have much cared about it and were seeking bright lines. It is possible that having seen this play out for the last two years they may be in a position, some of them at least, of saying this isn’t what we intended or expected would happen. We didn’t think that an independent non-coordinated expenditure, which by their definition had no possibility of corruption, was going to be a $10 million contribution given to a Gingrich Super PAC run by the candidate’s closest aides who say they get their instructions on television from the candidate.So I think Bob is absolutely right that there is in Citizens United, and in the Wisconsin Right to Life opinion before it, a very angry tone at the mention of regulation. To the majority, this is First Amendment protected speech and you can’t have what they were told was a cumbersome regulatory structure that is impossible for normal people to navigate. I think that Bob’s right; they were trying to sweep all that away.
Q: Do you think they believe First Amendment protection trumps corruption concerns?
Bauer: I think they disagreed with some of the arguments made by the reform community and by people who support the more robust level of protection. They disagree about what constitutes the kind of corruption that is sufficient to trump First Amendment concerns.
Here’s one question that has arisen and remains highly contested. Some argue that much high-profile giving in this campaign is less access-driven than it is ideological in character. Consider the casino magnate underwriting Gingrich’s PAC and the Texas businessman underwriting the Santorum PAC. They’re the largest donors, the ones without whom those PACs would have probably faded away. These are people who are very vocal about their views and why they’re supporting these particular candidates, but it is said that they don’t fit into the classic model of donors providing money to candidates for the purpose of buying government policy. So the Court, faced with the suggestion that this is all leading to corrupt conduct, may say, “Well, it’s really not presenting a risk of corruption. What we see are individuals with ideological views supporting candidates who share those views, not corruption aimed at the heart of government. This looks like the crux of the kind of ideologically motivated speech that demands First Amendment protection.” We'll see how this develops. Others, like Rick Hasen at UC Irvine, argues that this is very much activity that threatens corruption.
Potter: And I would differ on a portion of that.For instance, I think the Gingrich PAC has had a different fundraising model from some of the other PACs. The Romney PAC, instead of having onebillionaire who says he cares about a foreign policy issue, is a more traditional collection of donors, many corporate interests. Theymay be giving because they think Romney's the only candidate who understands the economy, or Romney is the only person who understands capitalism. The reality is if you're in the hedge fund community and you're giving to Romney, you may well also hope that he's going to share your views on the controversial carried interest tax provision. If you and your company have given him a million dollars, that may give you some opportunity to interact with him in the campaign and down the line. That is what Buckley said was the appearance of corruption and therefore could be limited.
Q: Under Buckley that would have been a violation?
Potter: This is one of the interesting things to me about it and we’ll see what Bob thinks. One of the developments post-Citizens United – and there’s a whole controversy over whether it’s really a Citizens United development or whether it’s in some ways separate in the SpeechNow case – but one of the things that’s happened is that we’ve gone from talking about an independent expenditure, to a contribution to an independent expenditure committee. If you go back to Watergate and Buckley, the issue was giving money to Richard Nixon which, of course, meant giving money to his committee. If we’re now in a position where you’re giving a million dollars or more and it’s indeed corporate money to what Romney calls ‘my’ PAC, which is closely associated with his campaign, is that more like a contribution, or is that more like the independent expenditure that they were talking about in Buckley and presumably in Citizens United? To me, it’s a little murky and I don’t think falls squarely within the Citizens United jurisprudence.
Q: If the Montana case [Western Tradition Partnership v. Bullock, upholding regulations that Citizens United expressly disallowed] actually gets plenary review, how do you think the Court will respond?
Bauer: I strongly suspect that if this is litigated the Court will be briefed on the threat that many see in the current environment, and they’ll be briefed on the realities that have developed since Citizens United was decided. If the Court were to take the case, it would not address an issue at the margins, like what coordination really is taking place, but more a fundamental question based on Montana’s claims of whether Citizens United was simply incorrectly decided as a matter of constitutional law.
Potter: To me, the Ginsburg-Breyer statement* was a surprise. It’s a very public statement. Are they doing this to nudge their colleagues? Are they doing it because they’re sure they are going to reverse anyway and they’re laying down a marker? I have no idea.
Q: Or signaling Montana how to proceed? In effect saying, don’t skirt around Citizens United in claiming it really didn’t apply?
Bauer: That’s essentially what Justice Ginsburg says. Ginsburg essentially suggests that the issue is really about whether it was rightly or wrongly decided, not whether Montana is a special case that they need to distinguish.
Q: If they take the case and uphold Citizens United, what’s next? Will legislatures try to come at it from another direction with tighter disclosure requirements, or some other method that would not invoke a First Amendment challenge?
Potter: Sure. I think that what we are already seeing across the board are responses to this, or put more accurately, attempts to respond. You’re seeing legislatures trying to require the disclosure that Citizens United praises but isn’t really there. You’re seeing a discussion about whether legislatures should change their rules for corporations, because corporations are largely chartered by states, to prohibit them from spending money in politics or to require shareholder approval; all those issues. You have the SEC being asked to change its rules. You have the battles in corporate stockholder meetings over whether shareholders will be notified and what will they be notified of and so forth, and that’s just on the corporate side.
Q: What about the non-profit corporate ideological groups?
Potter: That’s a whole different world. There I think you’re talking about disclosure. That’s where you get to this big fight at the FEC over whether non-profits that engage in electioneering communications under the McCain-Feingold statute should be disclosing who gave them the money to do that. You could also see a whole battle on the definition of coordination for the Super PACs. Congress can change the statute. The FEC can change the regulatory language. The courts could, again, tell the FEC they have to rewrite their regs. So even if Montana comes to nothing, I think there is a battlefield there in all of these areas.
Q: Why is this a partisan issue? It seems more of a Pandora’s Box than it is some sort of bright line about a First Amendment issue. Republicans in this primary campaign are seeing some of the darker side of what might happen, aren’t they?
Bauer: Well, it’s partisan in this sense. Trevor is Republican and John McCain’s a Republican and so there are clearly differences over this issue within the Republican Party, but by and large the Republican Party institutionally has long been highly skeptical of campaign finance regulation. It has viewed it as a questionable undertaking by the majority to limit the political rights of the minority, or alternatively, just as a flat-out offense against the First Amendment.I remember when I first started practicing, the Republican National Committee published a newsletter called First Monday, shortly after the Watergate reform was passed, in which they were thundering away against campaign finance regulation. This view was reflected in the statements of the leading Republican legislators and politicians; it was reflected in the character of a number of Republican-supported nominees to the Federal Election Commission, Trevor being a notable exception. So there has always been this divide between the two parties on what it means for the government to step in and regulate the flow of political money.
Potter: I think there has always been a strong libertarian streak in the Republican party at all levels. Beyond that, there is maybe a division between Washington Republicans, meaning the party leadership, and the core of the party out in the country. One of the interesting things going on out there is if you look at polling, Tea Party Republicans have a more populist bent. They may not like government regulation but they don’t like corporations or labor unions buying elections either, and if you look at some of the polling, they’re also not happy with Citizens United. The party leadership is reflecting both the libertarian streak and the practical reality that Citizens United enabled groups who wanted to spend money to elect Republicans to do so directly and openly and with larger sums then they could do before. We’ll see how the partisan world plays out this year now that it looks as if the Democratic-leaning Super PACs are going to be more active and have encouragement from the president and the party leadership. Will that even the playing field? Will it change it? I don’t know, but until now, almost all the money in the Super PACs has all been spent for Republicans. Maybe that’s because that’s where the passion was from the mid-term election, but there have been no Democratic equivalents to the big Republican groups like American Crossroads in raising that much money in this cycle. So not surprisingly, Republicans are saying if we’re going to have reform, let’s have it after we’ve spent all this money.
Q: Bob, if Citizens United stays with us what long term effect will that have on the American political system, and how might that change your role as GC for the Obama campaign?
Bauer: Well, you raise an important question, by the way, which is the difficulty of taking stock of what all this means while it’s happening. There will be a lot of data collected about this experience. It’s going to take some time to gather and assess, and so the judgment about how much sway Super PACs did have on this election is very hard to make conclusively in the heat of the battle. For years people have been studying questions like the effect of PAC contributions and expenditures, or forms of corporate "issue advertising" – sham issue advertising as it continues to be called – and there’s going to be new, intensive attention paid to Super PACs. The experience is so limited, though, that I think some of the conclusions to be drawn have to be highly tentative.I do believe that many are prepared to say that it has had a real effect on the winnowing of primary fields. If a candidate’s camp has enough substantial support from the Super PACs, then defeat after defeat in circumstances that would normally dry all their money does not necessarily end things, if a Super PAC is prepared to stay the course. Perhaps that is one impact – on the primary selection process.
Potter: Right. And I think we’re still having trouble grappling psychologically with the reality that one outside person, or more or less an outside person, is able to keep an entire presidential candidacy going. The normal cycle is you win some primaries, your fundraising spikes, and you have money for the future. You start losing primaries, you run out of money, no one will give you more because you’re not winning primaries, and you’re not winning primaries because you don’t have money, and then you’re gone. That’s been true for 30 years. If anything, that cycle accelerated over the last couple of elections and now suddenly it’s ancient history. If somebody is willing to give the Super PAC money to keep you going, the primary candidates end up thinking about things very differently. If you had a budget that required a lot of money for TV advertising, and now the Super PAC is going to do it, you don’t have to spend as much.It also changes the dynamics. Fundraising for Republican candidates is down this cycle compared to last time; in fact, shockingly down in January where you would’ve thought it would be up as people are getting energized. Well, yes, that makes great sense because all their fundraisers who four years ago would’ve been working their tails off getting 50 donors in a room to raise money have left the campaign. They’ve gone to work for the Super PAC and they’re raising million-dollar contributions with a couple of phone calls.
Bauer: The difference in our party affiliation probably counts for something, but Trevor sees the decline in Republican giving as a migration of fundraisers away from the party to the Super PACS whereas I see this diminished giving as more a reflection of the lack of enthusiasm for the Republican field. [Laughter]
Potter: I understand, but the answer to that, Bob, is that many Republican donors are keeping their powder dry. They’re not deeply invested in any of these candidates, yet when they know who the nominee is in June, then we’ll produce our money. The point I’m making, of course, is that the money goes down if the pressure is off, and the pressure is off. If instead of raising $2,500 increments and having to work really hard at it, you can make a couple of phone calls and raise it for the outside group. So instead of saying they’ve raised less money, why not just combine what the Super PACs have raised with what the campaigns they support have raised? Then you’ll have a better sense of what they’re actually able to raise and spend. It’ll be interesting to see how this election turns out, but since the story last time was the power of the small donor, particularly in the Obama campaign, suddenly this year the story so far seems to be the power of the billionaires on the Republican side.
Q: It seems also that disclosure isn’t preventing anybody from making huge donations, $5 million, $10 million. The disclosure isn’t really limiting anything.
Potter: Bob’s right. There’s a distinction here to be made. It’s a really important one between the issues spenders who are proud of their issue, like their candidate, and have no stake in this except to make a point or want someone to win an election. That’s very different than the sort of lobbyist money that is more likely to be given through LLC structures where the press is rooting around because they can’t figure out who this is.
Bauer: As I suggested, when the Court must address the question of the link to corruption in independent spending, it may hear argument that the most visible of the Super PAC donors are people who are associated with ideological commitments. And conservative critics of campaign finance regulation will argue that ideological speech is ultimately what the Court should be protecting with decisions like Citizens United. Now I happen to believe that is incorrect, and an oversimplification of what is at issue here. Yet we will see what results from the Court’s striking impatience with any sort of a balanced regulatory regime and its belief that what’s required here for regulatory controls is too complicated, and therefore in and of itself constitutionally offensive.Trevor and I have had disagreements about this in the past about how well the balance between speech and association, on the one hand, and regulation, on the other, has been struck, but now a majority on the Court seems close to dismissing the entire balancing exercise.
Q: Are you struck by the rancorous tone between the dissent and the majority in these cases?
Bauer: The 5-4s on major issues can become quite testy in the Court. This area isn’t unusual in that respect. At the same time, the majority opinion by Roberts and the dissent by Kagan in the Arizona public financing case was remarkably illuminating, featured some biting prose, and really showed where the philosophical fault lines lay.
Potter: The other issue that comes to mind is the abortion issue; Planned Parenthood v. Casey, the O’Connor role, etc., where Justices who were getting frustrated in not getting their way, or who think the other side is doing a sleight of hand, can get pretty direct at saying so. I think some of the dissents here remind me of the passions in those cases where, again, you had a 5-4 and a dispute over the legitimacy of the views of the other side.
Bauer: To use Trevor’s term, Justices employ this angry tone because they’re absolutely convinced of their position. Remember the phrase from the Wisconsin Right to Life case, in the opinion authored by the Chief Justice, where Roberts says of further expansion of the regulatory regime, “Enough is enough.” This seems to just about capture the level of impatience Roberts and others on the Court have with the statutory regime that they seem prepared to dismantle in many respects.
Potter: On that point I’m curious. There are two cases that have come up recently, which the Court has essentially ducked, that flowed from this whole area of jurisprudence. One is the foreign national contribution, the Bluman case, and the other is the case last week where the Court denied cert and thus let stand the First Circuit decision on disclosure of funders of issue advocacy in an issue referendum. I wasn’t surprised by that, but I’m wondering if you think that either of those summary affirmances or refusals to grant cert indicate that the Court would just as soon not have campaign finance cases again, given the uproar of Citizens United.
Bauer: Well, that’s probably true although I wasn’t terribly surprised by their decision in the foreign national case. And there is certainly not the same majority in the Court for stepping away from disclosure issues as there is for dismantling the more substantive issue on speech. So it could be the Justices would like a break from more high-profile campaign finance cases. It could also be that the foreign national bans and disclosure requirements represent two directions that the Court is not prepared to turn away from.
Potter: I agree, but let’s look through the other end of that telescope. Assuming they basically send the signal that they’re not going to allow independent speech to be regulated out of existence, then it seems to me we end up in a position where corruption and the appearance of corruption does become front and center again. What you will have is a lot of activity that to the average reader of the dictionary is coordinated but which, for federal election law purposes only, is considered constitutionally protected independent expenditure speech. If that involves what we’re seeing – the business partner of the campaign manager runs a Super PAC, the father of the candidate is the major donor, the principal donor and fundraiser travels with the candidate and appears on stage, or another candidate meets with “his” $10 million donor to discuss policy, and one can go on and on with these examples – but if it all ends up looking like it’s really giving to another pocket of the candidate’s garb, haven’t we then obliterated the distinction in Buckley and turned this into a contribution? Haven’t we created exactly what the majority says we can regulate, which is potentially corrupt behavior? And I don’t know where that leads.
Q: Where do the parties’ national committees stand on this?
Potter: Well, their role is to be irrelevant. Their view is we don’t take sides in primaries. We’re not going to say anything that helps or hurts a candidate, and they wouldn’t take sides between Super PACs either. However, that doesn’t mean they’d be silent on Citizens United. I think the national committee, maybe much more so than the party at large, has very strong deregulatory, libertarian views. One of the senior officials on the national committee is James Bopp who brought the Citizens United case originally.
Bauer: That’s right, but Bopp has tried to bring the parties more into a deregulated zone. Their great fear is that the power of third party independent groups has ascended significantly at the expense of the parties. Bopp has already filed one case, unsuccessfully, in which he tried to carve out for the parties soft money now prohibited to them so they can engage in activities like issue advertising. He lost because it just simply couldn’t be squared with the McConnell case, but my guess is that they’re going to continue to look for more opportunities to make the case for parties because we are now seeing a significant imbalance between the parties and the vast and increasing influence of third party groups.
Q: Is campaign finance regulation about incumbents protecting themselves to make it harder for challengers to take them on?
Potter: That’s certainly the opinion of some of the justices. In the Arizona case, Justice Scalia starts talking about how this is incumbent protection as usual and just another example of incumbents trying to keep people out. It seemed to me that one of the missed opportunities in that argument was to point out that this was passed by a referendum of the voters – I think over the opposition of incumbents – but this was not incumbent legislation. We heard the same thing in McCain-Feingold from what was then the minority. I thought that was a silly argument because I’d been watching the sausage get made and to me, this was not incumbents protecting themselves. You might make the argument that the “millionaires” amendment was, but most of that legislation was a much more complicated question of how campaigns should be conducted. It was insurgents versus the leadership. It was Republicans versus Democrats. It was not the incumbents in the Congress making it difficult for their challengers.
Bauer: One problem, which Justice Scalia has made much of, is that members on the floor of the Senate have said things about purpose and motivation. In McConnell Scalia pointed to the statements that members of Congress made about negative advertising run against them. These were floor statements. On other occasions, Scalia has found such legislative history to be completely unpersuasive, but he was quite strongly persuaded by this particular set of floor statements!
Q: Trevor, how much fun are you having with Stephen Colbert’s PAC?
Potter: I’m having a blast.
Q: You really are his lawyer?
Potter: Yes. It’s the only time I’ve ever had to give a client advice in front of several million people.
Q: Are you’re giving him advice in the green room before you go on stage?
Potter: No. And unless I’m supposed to have a particular role, like with the Jon Stewart handoff, he doesn’t tip his hat about the questions in advance. He wants his viewers to hear what he can and can’t do with his Super PAC. It’s a little like taking a campaign finance final exam when you have no idea what the questions are going to be and the clock is running.
Q: On nationwide television no less. He’s brilliant.
Potter: He is. I think he’s done an amazing job of taking, as we’ve just had, a complicated hour of discussion about these issues and distilling it into 4½ minutes where people who are not lawyers say, ‘Oh, I get it.’
Q: The beauty of satire ….
Potter: Yes. I keep telling him he’d make a great Supreme Court advocate because of his ability to take all of this information and convey it in an engaging and clear way.
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
“Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay: Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.”