Justice Kennedy’s Mistaken Citizens United Vision and the Lurch Toward Campaign Finance Deregulation

January 21, 2011
Guest Post

This post is part of an ACSblog online symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Richard L. Hasen, is a Visiting Professor at UC Irvine School of Law and author of the Election Law Blog.
When the Supreme Court decided Citizens United v. FEC, arguably the most controversial decision of the Court since Bush v. Gore, observers offered a variety of predictions about what the post-Citizens United world allowing unlimited corporate and labor union spending in candidate elections would look like. Some thought corporations would be in a position to buy election results, or, as President Obama said, to "drown out the voices of ordinary Americans." Others thought the decision would not have much impact, because earlier Supreme Court decisions, including the Court's opinion in FEC v. Wisconsin Right to Life, had already made it much easier for corporations and labor unions to influence the outcome of candidate elections. Early empirical studies are still sorting out the effect of the case on the 2010 elections, and there's much speculation about how the case will play out in the 2012 presidential elections.

Justice Kennedy, author of the majority opinion in Citizens United, offered his own vision of the post-CU world within the case itself. He envisioned free exchange of ideas in a democratic marketplace, coupled with complete and instantaneous disclosure of campaign contributions and expenditures over the Internet: "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today...With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters."

Whether Justice Kennedy believed that existing campaign finance disclosure law would provide for this free and instantaneous exchange of information about campaign money or whether he was instead advocating that Congress adopt such a system is unclear. What is clear, however, is that Citizens United has not only unleashed new money into the election process; actions by lower courts and the FEC, combined with an inadequate disclosure regime, have led to a system of largely undisclosed corporate, union, and individual campaign contributions flooding into elections.

I've chronicled elsewhere the details of how this result came to be. It is enough to note now that there's no prospect things will get better any time soon. Republican FEC commissioners are still blocking efforts to ensure effective disclosure of contributions in federal elections, and there is virtually no chance that the current Congress will pass a viable disclosure bill absent some new scandal. (It is the story for another day how many Republicans abandoned their earlier support for the Kennedy position on disclosure once they achieved the freeing of campaign money in Citizens United.) It remains to be seen whether there's a litigation strategy to force the FEC to require disclosure that, if not instantaneous, will at least be timely and relatively complete.

And the need is urgent. The press has tried to fulfill the role of following the money when possible. As I explained in Slate, during the 2010 election "enterprising journalists, especially at The New York Times, have been digging into the shell game of contributions and spending, including activities by the American Future Fund, Crossroads GPS, and Americans for Job Security. The most important piece the Times has run, by Mike McIntire, demonstrated in vivid detail just how hard it is to follow the money without disclosure rules strongly enforced by the government. As McIntire explains, after his extensive investigation into the backers of the 'Coalition to Protect Seniors' led him to P.O. boxes and unanswered e-mails, it looked as if the health care industry might be behind an ad the group ran attacking the president's health care plan. But in all likelihood, we'll never know for sure."

Lack of disclosure deprives voters of important cues they need to make informed decisions of how to vote. It also creates the conditions for actual corruption of elected officials. Justice Kennedy's utopian information-flowing vision of the U.S. campaign finance system is now no more than a dream; the question is just how bad things will become in the 2012 election season.