How to Limit the Damage Caused by the Citizens United Decision

Posted in: Election Law

Two seemingly unrelated recent events could each have important portents for the future of American democracy.  First, President Obama recently announced that he had withdrawn his opposition to the formation of nominally independent “Super-PACs” to support his re-election.  Second, last week Congress announced that it would use the money from a planned auction of electromagnetic spectrum to cover the budgetary shortfall caused by its extension of the payroll tax holiday.

What is the connection between these two apparently unconnected news items?  The Obama decision on Super-PACs is a consequence of the flood of cash that has been wreaking havoc in the Republican Presidential nomination process, and that can be expected to have a similar effect during the general election.  Meanwhile, the spectrum auction presents an opportunity to limit the importance of Super-PACs in a way that might even satisfy the Supreme Court that gave us the 2010 decision in Citizens United v. Federal Election Comm’n.

In this column, I shall explain how Citizens United and related cases have been affecting politics.  I will then turn to spectrum regulation as a potential solution.

The Impact of Citizens United

Numerous commentators decried the decision in Citizens United as unleashing a potentially ruinous volume of money into our political system.  I counted myself a mildly dissenting voice.  Although I disagreed with the Supreme Court majority’s legal analysis, I predicted that the case would not do very much damage.

My point was not that American democracy would remain largely uncorrupted by the influence of money.  Quite the contrary.  “Even prior to the Court’s ruling” in Citizens United, I wrote at the time, “campaign finance regulation was so shot through with loopholes that individuals and corporations seeking to buy influence in Washington had little difficulty doing so.”

As readers may recall, Citizens United invalidated a provision of the so-called McCain-Feingold law that forbade the use of general corporate-treasury funds or union funds for financing political advertisements during the sixty days prior to a primary or general election.  As construed in a 2007 case, Federal Election Comm’n v. Wisconsin Right to Life, Inc., the ban on so-called “independent expenditures” by corporate-funded and union-funded speakers only applied to “express advocacy” for or against the election of a particular candidate.  Accordingly, even before Citizens United, Supreme Court precedent permitted essentially unlimited amounts of cash to enter the political process through multiple pathways.

One such pathway that was clear even before Citizens United involves political advertisements that do not quite constitute express advocacy.  Nearly everyone has seen this sort of ad.  It says something like this: “Congressman John Doe voted to raise taxes forty-three times last year.  He is bad for the economy and bad for this district.  Call John Doe and tell him to stop raising your taxes.”  The ad never calls for Doe’s defeat, nor does it mention Doe’s opponent, and therefore it is not deemed to be express advocacy—even though everyone watching understands that the point of the ad is to build up Doe’s negatives and thus lessen the chance of his election.

Citizens United extended the protection for independent expenditures that had previously applied to individuals, so that it now covers corporations and unions as well.  The Supreme Court has upheld limits on the amount of money that persons and entities can directly contribute to candidates’ campaigns, but the Court has also held that the First Amendment protects political advertising by third parties who do not coordinate their messages with the candidates—even when those messages substantially overlap with the candidates’ messages.

In the current campaign season, SuperPACs supporting the various Republican candidates have spent millions savaging one another, but anyone who thinks that this is a post-Citizens United phenomenon has forgotten past campaigns.

Indeed, the most infamous campaign ad in modern history—the Willie Horton ad that attacked Democratic Presidential candidate Michael Dukakis by attempting to connect him to the rape that Horton, a prisoner, had committed while on Massachusetts’ weekend furlough program—was the product of independent expenditures by a group that was not technically part of the election team of Republican candidate George H.W. Bush.

Notably, the man who made the Horton ad, Larry McCarthy, is now helping to direct the pro-Mitt Romney SuperPAC Restore Our Future, and as Jane Mayer documents in a recent New Yorker profile of McCarthy, he earned his reputation in the pre-Citizens United world.

Thus, Citizens United was not a necessary condition for the rise of SuperPACs.  And it is worth noting that the SuperPACs supporting Republicans Romney, Newt Gingrich, and Rick Santorum, respectively, have gotten much of their money from wealthy individuals, rather than from corporations.  Such individuals would have been legally entitled to back independent expenditures by PACs even without the Citizens United decision.

Still, something is different this time around.  Citizens United has come to mean more than the case formally held.  It appears to have signaled to candidates and donors alike that now, more than ever before, elections will go to the candidate whose backers spend the most money.

Should the Constitution Be Amended to Address the Noxious Influence of Money on American Politics?

Can anything be done to limit the impact of money on elections?  A number of groups have organized with the goal of overturning Citizens United by constitutional amendment, but some of their proposals are seriously flawed.

For example, Free Speech for People would amend the Constitution to strip corporations of free-speech rights.  This approach, however, is both too broad and too narrow.  The proposed amendment is too broad because media organizations often use the corporate form, and should be protected under a sensible definition of free speech.  The approach is too narrow because, as we have seen, much of the money now flooding into electoral politics comes from wealthy individuals, not corporations.

Is it possible to draft a constitutional amendment that authorizes serious campaign finance regulation without overly restricting speech?  Probably.  But it is difficult to imagine super-majority support for such an amendment, given that campaign finance reform is now mostly seen as a partisan issue, with Democrats in favor and Republicans opposed.  (Notably, Democrats who favor campaign finance reform but play the system for money now are not necessarily hypocrites: they favor systemic reform, not unilateral disarmament.)

How Congress Can Respond

The same political dynamic that prevents a constitutional amendment from being enacted may, in the short run, also prevent effective campaign finance regulation from emerging from Congress.  Now that the filibuster has become routine, it takes 60 votes in the Senate to accomplish anything substantial, and there are not now 60 votes in favor of substantial campaign finance reform.

But that could change relatively quickly.  If it did, are there measures that Congress could then take to rein in the effects of money on politics?

The majority in Citizens United itself reiterated that public disclosure measures remain constitutional.  Under current law, donors to SuperPACs must be disclosed, but many of the sources behind independent expenditures can be hidden from the public.  Congress could, if it so chose, widen disclosure requirements.

Greater public disclosure would almost certainly have some benefits, but the cleanest way to limit the corrupting effect of money on politics is generous public financing of elections.  Independent expenditures by SuperPACs, corporations, and wealthy individuals are important because they overwhelm the resources available to candidates.  Generous public funding would give candidates the tools to fight back without having to make promises (even implicit ones) to donors seeking influence.

The problem, however, is that our system of public financing is far from generous.  Indeed, in 2008, then-candidate Obama broke an earlier pledge and rejected public funding for the general election because he could raise substantially more money from donors than from his allotment under the public funding formula.

Could that change?  Is Congress prepared to allocate billions of dollars to fund election campaigns?  Unfortunately, the answer is very likely no.

Part of the problem here is self-dealing.  Incumbents have fundraising advantages over challengers, and thus Congress—which is always completely composed of incumbents, regardless of party affiliation—will generally be reluctant to establish public funding at a level that would truly close the gap.  Public funding schemes also face the challenge of defining eligibility in a way that directs funds to candidates who have a legitimate chance of winning election, but does so without shutting out dissenting voices.

In the end, the biggest challenge of all for public funding schemes may be that the American people under-value the public funding of elections.  To some people, such funding appears to violate a maxim that was first announced by Thomas Jefferson: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”  Others may simply think that public funding for elections ought to be a lower priority than any number of other uses of public resources.

One might think that Americans are wrong to oppose generous public funding of elections.  After all, Jefferson’s maxim, if taken seriously, would disable the government from much of what it now does, including supporting public education.  Meanwhile, public funding could save more money than it costs: Candidates who are less beholden to political backers will be less likely to enact legislation that benefits those backers at the expense of the public as a whole.

Still, even if Americans ought to favor more generous public financing of elections, the fact is that they do not.  Is there some way, then, to get most of the benefits of generous public financing without triggering opposition?  Perhaps.

The Spectrum Option

When people see the government handing over millions or even billions of dollars to candidates for office, they may rebel.  But what if, instead, the government simply required that media companies provide candidates with millions or billions of dollars worth of advertising space and time, without charge?  That would not show up as a government expenditure at all.

Would it be constitutional, though?  After all, media companies have rights to free speech and property.

They do, but under Supreme Court precedent going back at least as far as the 1969 decision in Red Lion Broadcasting Co. v. FCC, the government can, as a condition of granting exclusive licenses to broadcasters, require that those broadcasters obey certain public interest rules, such as minimum requirements for news and educational programming.

Of course, much has changed since 1969.  Perhaps the most important development was the spread of cable television.  Cable does not rely on sending wireless signals, and thus does not offer the government the same justification for regulation.

However, the momentum is now swinging back to wireless.  As Americans increasingly get their content—including television programming, Internet, and newspapers—over wireless networks, the old argument that the government can regulate electromagnetic spectrum in the public interest may take on new significance.  The government could require that spectrum licensees and their sub-licensees set aside “airtime” and its equivalent for free political advertising.

Would there be obstacles?  Sure.  The Supreme Court today looks very different from the Court that decided Red Lion. The Justices who brought us Citizens United might decide that the free speech rights, or the property rights, of wireless licensees prevent Congress from imposing free-airtime requirements.

In addition, some of the same forces that lead incumbents to oppose public campaign finance from general funds could also lead to opposition to a spectrum plan.  But unlike direct subsidies of electoral campaigns, a requirement of free airtime is unlikely to encounter widespread popular opposition.  If the People were to get behind such a plan, Congress just might surprise us and follow suit.

Posted in: Election Law

3 responses to “How to Limit the Damage Caused by the Citizens United Decision”

  1. Frncs says:

    This may be one of the most appropriate ways to equitably present political campaigns. But could “bought” time still be acquired? If so, the Koch brothers and others of their ilk would still unduly influence.

  2. Anonymous says:

    No consideration of limiting the spending on campaigns or limiting the duration of the campaigns? I guess I’m not surprised because it’s a lawyer writing. Well, well. So how about something really radical, like trying to improve the critical thinking skills of the voters so that political candidates can’t be marketed on the same basis as laundry soap? (Actually, that’s an exaggeration, but it still makes me wonder why most non-political advertising is so careful about the negative comparisons whereas political ads are so generous in the worst way.)

  3. Democracy Chronicles says:

    This is a very interesting article.  I work with many people involved in the fight against big money in politics.  If anyone wants to be a part of the effort to fix the system please contact us at our website.  We have Occupy people, more welcome, but we need more tea party people!