Citizens United v. FEC

  • April 12, 2011

    The Supreme Court’s conservative wing appears bent on redefining politics by ensuring the wealthiest candidates are not hindered in their never-ending quest for political power. In its editorial, “Unfettered Money,” The New York Times notes that the conservative justices who invalidated major campaign finance regulations in Citizens United v. FEC appear united in their belief that money literally equals speech, and therefore campaign finance regulations are highly susceptible to being invalidated as unconstitutional restrictions on political speech.

    Noting recent oral argument in a case challenging Arizona’s public campaign financing law, the editorial notes that the conservative bloc appears eager to invalidate it. The law provides public funding to candidates who agree to participate in the public financing system. The opponents of the law argue that Arizona is trying to undercut the speech of wealthy candidates, and during oral argument, The Times notes, Chief Justice John Roberts Jr. agreed with that proposition.

    The Times concludes:

    That makes no sense. Arizona’s mechanism means more candidates – not just the wealthy – will be able to run in elections. And that means more political speech, not less. But that view depends on seeing money as enabling speech, not vice versa. Money already has far too much sway everywhere in politics. If the court continues this way, the damage and corruption will be enormous.

    In a guest post for ACSblog, Rick Hasen, an election law expert and founder of Election Law Blog, wrote that an opinion invalidating Arizona’s law “is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters.” 

  • April 11, 2011

    Shareholders of Home Depot will likely have more influence in the company’s political expenditures, reports Ciara Torres-Spelliscy for the Brennan Center for Justice.

    Torres-Spelliscy notes a recent no-action letter from the SEC that she says “will enhance the ability of shareholders to have more of a voice when publicly-traded corporations spend money on politics.”

    The SEC letter was prompted after Home Depot “tried to keep a shareholder resolution on corporate political spending off of this year’s proxy statement,” Torres-Spelliscy wrote. “The SEC said the shareholders would get a chance to vote on the matter. This action provides shareholders with greater protections when corporations spend their money, in the form of general corporate funds, on politics.”

    The SEC’s action according to Torres-Spelliscy means that the shareholders have the opportunity on “company-by-company basis” to take action the planned political spending. “This is a big step,” she writes, “in the right direction for giving shareholders more protections after Citizens United allowed corporations the ability to spend other people’s money in politics.”

  • March 29, 2011
    Guest Post

    By Rick Hasen, Visiting Professor, University of California, Irvine School of Law. This analysis is cross-posted at the Election Law Blog.

    Will an adverse ruling in McComish doom future viable public financing plans?

    I have now reviewed the transcript of yesterday's oral argument. News reports from oral argument are unanimous in predicting that the Court will strike down the matching fund provision of Arizona's public financing law, which provides extra funding (up to a point) for candidates who participate in the voluntary public financing system and face a high spending opponent or a high independent spending against the candidate. This is no suprise; indeed I predicted this in June, when the Court granted an extraordinary stay in the case.

    More interesting at this point is the question whether there will remain other viable and constitutional public financing systems after the Arizona system falls. In Slate, I explained the logic of why a rational candidate would not choose to participate in a flat public financing system (like the way the moribund presidential public financing system works) unless there are adequate safeguards that the participating candidate won't be outspent. As I wrote at Summary Judgments back in November,

    [A ruling striking down the Arizona law] is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems.

  • January 31, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Daniel JH Greenwood, is a professor at Hofstra University School of Law, where he researches corporate governance and the role of corporations in our economy and democracy. He co-authored an amicus brief in Citizens United on behalf of the American Independent Business Alliance.
    A year later, Citizens United still looks like the modern Lochner v. New York. This case may well come to symbolize the Court's contribution to our modern Gilded Age and its destruction of the foundations of prosperity and democracy.

    Lochner symbolizes the Old Court's turning the Civil War Amendments on their heads. The Fourteenth Amendment promised African-Americans, and indeed all Americans, the rights of citizenship, equal protection and due process of law. The Court, instead, ruled that American citizens had fought the Civil War in order to forfeit our right to use democratic government to protect ourselves against the arbitrary power of "malefactors of great wealth."

    The Gilded Age's concentration of power and wealth in the hands of a few, symbolized and furthered by Lochner's rejection of basic American values, led straight to the Great Depression. Neither democracy nor market capitalism can long survive if entrenched economic power is permitted to set the rules of competition so that it always wins. When ordinary Americans lacked the power to demand wages high enough to buy the products and services they produced, the resulting shortage of demand nearly destroyed the system.

    Today, we are again in a crisis caused by a similarly radical upward shift of power and wealth. In sector after sector, economic incumbents have amassed enough power to be able to shift the rules in their own favor. We have raised CEO and banker pay, at the direct cost of ordinary employee wages, to the point where our major firms increasingly resemble the world's kleptocracies. The wonder is not that so many have collapsed, Enron-style, into complete corruption or, dot.com and housing-style, into utter incompetence and misallocation, but that so many manage to last so long, emulating the Soviet and Third World autocracies in their fantastically wealthy elites and long slow slides into collective failure.

  • January 28, 2011
    Guest Post

    By Dan Tokaji, Professor of Law, Ohio State University, Moritz College of Law. Professor Tokaji is also a member of the ACS Board of Directors. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC.
    Contrary to popular belief, the most significant aspect of last year's Citizens United v. FEC was not its conclusion that corporations have free speech rights. The Supreme Court actually settled this question long ago. Nor is the main problem the influx of anonymous corporate spending on federal elections. Citizens United may have exacerbated this problem, but it existed before - and, at any rate, identification of big spenders can be addressed through tougher disclosure and reporting laws.

    The most significant and damaging aspect of the Citizens United decision was its obliteration of equality as a rationale that may sometimes justify limits on political spending. Overruling this aspect of the decision is a precondition to real campaign finance reform. In thinking about what can be done to promote political equality, the United States would do well to consider Canada's example.

    Citizens United was correct to affirm that campaign-related expenditures - whether made by corporations or by individuals - have an expressive quality that warrants some degree of constitutional protection. Where the Court erred was in failing to recognize the consequences of the fact that money is essential to political participation. If effective electoral speech requires money, then those without money lack an equal voice in our democracy. The ultimate consequence is to skew political debate in favor of the wealthy, both in terms of who gets elected to office and the decisions they make once in office. This is anathema to a democracy committed to the principle of "one person, one vote." In effect, the have-alots have a much greater say in our political system than the rest of us.

    Students of American campaign finance law might note that Citizens United's rejection of equality is nothing new. That is partly true. Since Buckley v. Valeo (1976), the Court has purported to forbid campaign spending restrictions designed to promote equality. Buckley famously prohibited government from "restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others." On this basis, the Court struck down limits on individual expenditures in federal campaigns.