Can Obama Mitigate Ramifications of Citizens United?

February 6, 2012
Guest Post

By Billy Corriher, an attorney working in civil rights


With the 2012 election in high gear, the country is tasting the bitter fruit of the Supreme Court's controversial Citizens United v. FEC opinion. Vitriolic political ads - funded by anonymous donors, accountable to no one – are flooding the airwaves in primary states. When these ads go nationwide, the chorus of criticism against Citizens United will only grow louder. We are already seeing local governments and state courts rebuking the Court. The Portland City Council, for example, passed a resolution opposing the idea that corporations are persons with constitutional rights.

In Citizens United, the Court ruled unconstitutional a federal law prohibiting corporations from airing political ads before an election. The Court found that the statute infringed corporations' right to free speech and that this infringement was not justified by a compelling government interest. The Court said, “[I]ndependent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Although such expenditures may give rise to “the appearance of influence or access,” this was not a problem for the Court because “an independent expenditure is political speech . . . that is not coordinated with a candidate.” 

As soon as it was announced, Citizens United came under fire. The idea that five unelected judges understand political corruption better than the United States Congress is absurd, and the notion that Super-PACs are “independent” of the candidates has proven to be a ludicrous legal fiction. 

A stark rejection of Citizens United comes from the Montana Supreme Court, which upheld the state's restriction on political spending by corporations. The plaintiffs refused to disclose any information about its donors or its plans, so the court was hard pressed to discern the impact of the law on the plaintiffs' speech. A dissenting judge, while arguing that Citizens United required a different outcome, harshly criticized the decision. “[I]t is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creations of government.”   

To counter Justice Anthony Kennedy's rejection of the anti-corruption interest, the majority opinion discussed Montana's disturbing history of political corruption by mining corporations. The corporations bribed judges and legislators. One mining mogul even bought a U.S. Senate seat, twice.  Another owned 90 percent of the state's media outlets. The Montana government became an organ of out-of-state corporations. The court said that, 100 years later, Montana still has an interest in preventing such corruption and in ensuring that voter participation is not discouraged by the perception that politics is all about money. This decision, like Citizens United, involved judges weighing public and private interests. 

President Barack Obama should consider using his executive authority to change the balance of these interests at the federal level. Rather than waiting for Congress or a constitutional convention, Obama may be able to take some action unilaterally.  Given the gridlock and recalcitrance in Congress, the president has started emphasizing executive initiatives that do not require congressional action. There also seems to be an attempt on Obama's part to preempt critics who say his administration is strangling the economy with burdensome regulations. (For example, he recently requested congressional authority to combine duplicative departments.) Both of these goals would be furthered by pushing the FEC to simplify the rules governing PACs.

The Court in Citizens United described the FEC's “onerous” procedures as tantamount to a prior restraint on speech, the type of restriction that draws the strictest scrutiny. “[G]iven the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability . . . must ask a governmental agency for prior permission to speak.” The Court rejected the argument that PACs offered a sufficient venue for corporate speech. “PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations.” The Court thus perceived a heavy burden on speech.

The Montana Supreme Court, in contrast, said Montana PACs can be established with “simple and straight-forward forms or reports.” The system is described as “an easily implemented and effective alternative to direct corporate spending for . . . political speech.” The court noted that corporations have long been successful in influencing the political process through PACs. Thus, the state system was deemed less of a burden on speech. 

Obama should make the federal system more like that of Montana. The president enjoys great influence over the FEC.  He appoints its members and can probably fire them.  When it created the FEC, Congress sought a role for itself in nominating the commissioners.  The Court, however, ruled that this system violated the Constitution's command that the president appoint “officers of the United States.” The Supreme Court has upheld some limits on presidential authority to fire such “officers,” but it recently rejected a limitation that went too far: “The President cannot 'take Care that the Laws be faithfully executed' if he cannot oversee the faithfulness of the officers who execute them.” At the very least, Obama can use the bully pulpit to bring public pressure to bear on the agency. 

The FEC currently enforces almost 600 pages of regulations.Obama should cut this red tape and defend the revamped system in the courts. After all, the Montana court purported to apply Citizens United to the facts before it, noting that the Court did not announce a categorical ban on corporate expenditure limits. (Kennedy said that “it might be maintained that political speech simply cannot be banned or restricted as a categorical matter,” but he instead used the framework described above.) Given the harsh criticism of his opinion, Kennedy may be reconsidering his stance on campaign finance reform.

The Court's decision has given the rich and powerful even more political influence. How will ordinary citizens feel about politics, now that politicians are beholden to unlimited, anonymous campaign contributions? The public is being bombarded with negative ads - the corporate-funded fury unleashed by Citizens United. The American people must speak up, if they are not drowned out by the “free speech” of soulless corporations.