Did The Supreme Court Miss The Real Issue In The Citizens-United Campaign-Financing Case?
If Congress had done it right, the real question would not have been, “Do corporations have the same free-speech rights as humans?” but rather “In order to prevent toxic corruption of the electoral process, can Congress legally limit everyone’s independent campaign expenditures?”
By David Grace (www.DavidGraceAuthor.com)
The Citizens-United Supreme Court Decision
On January 21, 2010 the Supreme Court issued its opinion in the landmark campaign-financing case of CITIZENS UNITED v. FEDERAL ELECTION COMMISSION.
At the time of this decision political campaign donations were divided into two categories:
- Direct Political Contributions, and
- Independent Political Expenditures.
Direct Political Contributions meant money given directly to a candidate’s campaign fund.
Independent Political Expenditures meant money that the contributor paid to third parties in order to help or hinder a candidate.
For example, suppose John Smith is a supporter of gun control and that he strongly opposes the election of Congressional candidate Bill Jones.
Smith uses his own money to make an anti-Bill Jones TV commercial and then he pays a local TV station to broadcast that commercial as a way to help Bill Jones’ opponent and gun-control supporter, Sally Johnson.
The money that Mr. Smith paid his local TV station to broadcast his anti-Bill Jones TV commercial is an Independent Political Expenditure because it did not go through Sally Johnson’s campaign fund, but rather Smith paid that money directly to the TV station, in theory, without any involvement by Sally Johnson’s campaign.
Prior to Citizens United, the courts had held that direct contributions to political candidates and also independent expenditures for the benefit of political candidates were both exercises of the contributor’s right of Freedom of Speech and both were protected by the First Amendment.
Because of the perceived material risk of bribery or the appearance of bribery arising from direct contributions to federal candidates, the courts held that in spite of the First Amendment, Congress could still constitutionally limit the amount of money both humans and corporations could directly contribute to political candidates.
Because the potential for corruption from independent political expenditures by humans was determined to be less than the risk of corruption from direct political contributions by humans, independent political expenditures by humans were deemed to still be protected by the First Amendment and they could not be prohibited by Congress.
Corporations, on the other hand, were believed to have fewer rights than humans under the First Amendment and it was held that Congress could therefore legally prohibit independent political expenditures by corporations and labor unions.
By a 5 to 4 margin the Court in Citizens United held that corporations have the same First Amendment rights as human beings and that therefore it was unconstitutional for Congress to prohibit a corporation from making any independent political expenditures while allowing humans to make unlimited independent political expenditures.
The Corporate Free-Speech Question
Many people were upset by this decision because it allowed massive, new, unlimited corporate and union spending for the benefit of federal political candidates. Most of the Citizens-United criticism focused on the Court’s holding that corporations have the same free-speech rights as human beings.
I think that the differentiation of corporate free-speech rights from human free-speech rights is not really the crucial issue here.
I think Congress ignored the bigger issue, one that had nothing to do with any supposed difference between the free-speech rights of corporations and those of human beings, namely, “Should Congress have imposed reasonable limits on independent political expenditures by both corporations and humans?”
DIRECT CAMPAIGN CONTRIBUTIONS
Is My Giving Another Person Money That They Use To Speak As They Please An Exercise Of MY Free Speech Rights?
In relevant part, the First Amendment says, “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”
With regard to direct contributions (not independent expenditures) the Courts have long assumed that they were an exercise of First Amendment free-speech rights, but I would argue that’s not correct.
The Court’s reasoning that direct contributions are an exercise in free speech was essentially that if I can’t give a candidate $1,000 which he would use to pay a TV station to broadcast his campaign message then his resulting financial inability to broadcast his speech would somehow become a limitation on my speech, that if I couldn’t give him money to say things that I thought I would agree with, that then my right of free speech would be limited.
The logic seems to be that when the candidate speaks he is acting as a conduit or a surrogate for the contributor, that his speech is the contributor’s speech, like an athlete who is paid to endorse his sponsor’s tennis shoes, and if the contributor can’t give the candidate that money then the contributor has experienced an infringement of his own right to speak.
I think that’s a flawed argument for three reasons.
No Control
- The statements the candidate publishes with my contribution are not necessarily the same as the the statements I would make if I were speaking directly.
The campaign contributor has little or no control over the candidate’s actual speech. The contributor can’t be sure that everything the candidate publishes with the contributor’s money is the same as what the contributor would say were he were exercising his own free speech rights.
The Contribution Might Not Be Spent On Speech
2. The contributor can’t be sure that the money he gives the candidate will be used to disseminate ideas.
If I give candidate Bill Jones a thousand dollars which he uses to pay the rent on one of his campaign offices or for fuel for his campaign airplane that money hasn’t directly paid for any speech at all.
Sure, you can say, “Well, he took the money that he otherwise would have used for rent to print flyers, so your paying his rent indirectly freed up that other money that he used for speech.”
By that logic, if I buy commercial equipment from a company that often makes independent political expenditures then my purchase of equipment is really an indirect exercise of my right of free speech because the profit the seller made on that sale to me freed up other corporate money which it used for independent political expenditures.
By that logic, anything that indirectly creates or blocks public speech is protected by the First Amendment, as if the incarceration of a criminal defendant who would have distributed campaign flyers were he not locked up is an infringement of his right of free speech.
Obviously, we can’t reasonably define the exercise of a right of free speech as every action that eventually, indirectly, leads to some speech-related outcome.
Whether Or Not The Candidate Speaks In No Way Limits The Contributor’s Independent Ability To Speak
3. Whether the candidate speaks or not in no way deters the contributor from exercising his own free speech rights by speaking directly.
Is it true that if I can’t give you money to broadcast whatever message you wish to deliver, but which I anticipate I will agree with, that I’m then being prevented from speaking as I wish?
Of course it’s not. If I want to deliver a message I am free to speak it directly. If I don’t have enough money to do that then I can join with others who think as I do and we can pool our money to deliver our message, that is make an independent political expenditure, which is why independent expenditures really are different from direct contributions.
In my view, the right to contribute money to candidates is not really about the contributor exercising his right of freedom of speech. The contributor always has his free-speech right and ability independent of the candidate.
The Right To Make A Direct Political Contribution Is Actually An Exercise Of The Citizen’s Right To Participate In The Electoral Process.
The right to contribute money to a candidate is about the contributor’s right to take an active role in the electoral system and to influence the outcome of an election.
It’s not about speech. It’s about elections and democracy.
I may well have some constitutionally-protected right to contribute money to a political candidate, but in my view that right does not derive from the First Amendment.
If Not Protected By The First Amendment, Does The Constitution Elsewhere Guarantee The Right To Make Direct Political Contributions?
Let’s assume that we have some constitutionally protected right to contribute money to political candidates. If that right is not derived from the First Amendment, where does it come from?
The Constitution, does not explicitly guarantee citizens the unrestricted right to vote, the right to be a candidate for public office, or the right to contribute money to any candidate.
Article I, Section 2 grants citizens the right to vote for congressional candidates. It provides that the members of the House of Representatives are to be chosen every two years by the People of each state and that the qualifications of those voters will be the same as the qualifications for voting for the members of that state legislature’s most numerous body.
Later, when people decided that the states were wrongfully limiting who would be allowed to vote for their state legislators, the Constitution was amended to tell the states that they could not disqualify voters because of their race, color or previous status as a slave (15th Amendment); their gender (19th Amendment); their failure to pay a poll tax (24th Amendment) or because they were between the age of eighteen and twenty-one (26th Amendment).
If you’re looking beyond Article 1, Section 2 for protection of the actions we think would be vital for a citizen to participate in the electoral process, you’ll probably want to consider the provisions of the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The Constitution guarantees people who qualify as voters for state legislatures the right to vote in elections for congressional candidates.
In order to have meaningful elections as guaranteed by Article I, Section 2 the candidates must also have the right to campaign effectively. To effectively campaign, candidates need to be able to raise and spend money.
If candidates have the right to raise money then it follows that citizens must have the right to contribute money and to take such other legal actions as may be necessary or reasonable to participate in the electoral process.
All those rights of candidates and citizens which can be seen as ancillary to holding meaningful elections can be argued to be constitutionally protected in order to implement the voting provisions of Article I, Section 2, and also to be rights that are necessarily included within the Ninth Amendment’s unenumerated but protected rights that are retained by the people, but which aren’t explicitly stated in the Constitution.
I think the Courts were correct when they held that the right to make direct political contributions was constitutionally protected, but that the right to make direct political contributions could be limited when there was a compelling state interest to do so.
But, I think that such limitations should not be viewed as compelling state interest exceptions to the right of freedom of speech under the First Amendment, but rather as a compelling state interest exception to Article I, Section 2 and as an exception to the other unenumerated rights reserved to the People under the Ninth Amendment.
INDEPENDENT POLITICAL EXPENDITURES
When I make a direct political contribution to a candidate to be used by him/her in any number of ways from disseminating ideas to putting gas in the campaign bus, what I get for my money is the ability to participate in and to some degree influence the electoral process.
But when I make an independent political expenditure, I’m disseminating my own ideas. I’m printing my own flyers, broadcasting my own TV commercials, making and exercising my own speech containing my own political views.
My independent political expenditures are a direct exercise of my freedom of speech and of the press.
If the Congress tells me that I cannot spend any of my own money to broadcast a TV commercial that expresses my own political philosophy or aids my chosen candidate, then the Congress is directly and severely limiting my right of freedom of speech and/or freedom of the press.
Congress Limited The Identity Of The Contributors Rather Than The Amount Of The Contributions.
Congress was rightly concerned about the corrosive effect of huge amounts of money being donated to federal candidates by a small number of contributors.
Congress assumed that those large contributors would be artificial entities and mistakenly sought to solve the money problem by limiting who could give money instead of limiting how much money could be given.
I think that $1,000 given by a corporation is no more harmful than $1,000 given by an individual and that $1,000,000 given by an individual is no less toxic to democracy than $1,000,000 given by a corporation.
For me, Congress made a huge mistake when it decided to tackle the campaign-financing problem by limiting who can make independent expenditures rather than by limiting how much any one donor can give as an independent expenditure.
I think Congress increased the risk that the court would strike down 2 U. S. C. §441b of the Bipartisan Campaign Reform Act of 2002 (BCRA) when Congress decided that corporations and unions would be entirely barred from making any independent political expenditures while humans would be free to make unlimited independent political expenditures.
If, instead, Congress had drafted the BCRA to impose reasonable limits on all independent political expenditures, possibly the result in Citizens United might have been different.
For me, the legislative question that I wish the Court had been called upon to decide in Citizens United was whether or not independent political expenditures are so potentially toxic and so corrupting to the political process that a specific limitation (not a total prohibition) placed on independent expenditures by anyone, corporation or human, was constitutional in relation to the potential harm they posed and the level of the state’s compelling interest in ameliorating that harm.
But Congress did not give the Court that option. Instead it prohibited all corporate and union funding of political speech while at the same time allowing unlimited human funding of political speech.
Congress therefore forced the Court to decide if corporations had no political free-speech rights in the same situation where humans had unlimited free-speech rights. I believe that this all-or-nothing choice materially contributed to the Citizens United Court picking the “all” alternative and striking down Section 441.
How Serious A Threat To Democracy Are Unlimited Independent Expenditures?
A Super Political Action Committee (Super PAC) is a type of independent political action committee which may raise unlimited sums of money from corporations, unions, and individuals.
Citizens United was decided in late January 2010. By the end of 2010, in just eleven months, 83 new Super PACs had already spent about $62.6 million dollars on federal elections.
In 2016, 2,392 Super PACs had spent about $1.06 Billion dollars on federal elections. That’s about a 29 times increase in the number of Super PACs and about a 17 times increase in the dollars spent by Super PACs.
It’s not a secret that since Citizens United a tsunami of money has overwhelmed the electoral process. Even worse is the fact that most of that money is coming from a very small number of contributors.
The Bipartisan Policy Center released their report on 2016 federal campaign spending. In 2016 about 1/2 of 1% of all federal campaign donors were the source of 50% of all federal campaign contributions. Half of all the money came from just 1/2 of 1% of the donors.
But even that is misleading because the denominator of that fraction is the total number of people who made political contributions over $200, not the number of adults in the United States.
In 2016 only about .7% of the entire adult U.S. population, about 1,717,000 people/organizations made federal political contributions of $200 or more. Half of the money spent by those 1.7 million people came from only about 86,000 people/organizations.
That means that half of all federal campaign spending was made by only 86,000 people/entities out of 245,000,000 million American adults, which is about .035% of the adult population, 1/30th of 1% of the adult population spent one-half of all federal campaign money.
Think about that for a moment. Half of all the spent on federal election campaigns was donated by only 1/30th of 1% of the adult population.
When you have that concentration of money being spent on electing federal candidates by just a tiny percentage of the adult population what realistic chance do ordinary citizens have of ending up with a government that will care at all about what they need versus what corporations, labor unions and wealthy individuals want?
What Mr. Justice Stevens Said About The Corrupting Influence Of Political Contributions
With regard to the corrupting effect of unlimited independent political expenditures, I think it’s useful to read some of the comments Mr. Justice Stevens made in the Citizens United dissent that he wrote on behalf of himself and the other three dissenting Justices.
At page 57 Mr. Justice Stevens said:
“On numerous occasions we have recognized Congress’ legitimate interest in preventing the money that is spent on elections from exerting an ‘undue influence on an officeholder’s judgment’ and from creating ‘the appearance of such influence,’ beyond the sphere of quid pro quo relationships.”
“Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.”
“Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA, a record that stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other’s backs — and which amply supported Congress’ determination to target a limited set of especially destructive practices.”
Mr. Justice Stevens continuing on page 58:
“The factual findings of the Court illustrate that corporations and labor unions routinely notify Members of Congress as soon as they air electioneering communications relevant to the Members’ elections. The record also indicates that Members express appreciation to organizations for the airing of these election-related advertisements.”
“Indeed, Members of Congress are particularly grateful when negative issue advertisements are run by these organizations, leaving the candidates free to run positive advertisements and be seen as ‘above the fray.’”
“Political consultants testified that campaigns are quite aware of who is running advertisements on the candidate’s behalf, when they are being run, and where they are being run. Likewise, a prominent lobbyist testified that these organizations use issue-advocacy as a means to influence various Members of Congress.”
“The Findings also demonstrate that Members of Congress seek to have corporations and unions run these advertisements on their behalf. The Findings show that Members suggest that corporations or individuals make donations to interest groups with the understanding that the money contributed to these groups will assist the Member in a campaign. After the election, these organizations often seek credit for their support.”
Page 59:
“When private interests are seen to exert outsized control over officeholders solely on account of the money spent on (or withheld from) their campaigns, the result can depart so thoroughly ‘from what is pure or [page 60] correct’ in the conduct of Government–Webster’s Third New International Dictionary 512 (1966) (defining ‘corruption’), that it amounts to a ‘subversion . . . of the electoral process,’ Automobile Workers, 352 U. S., at 575.”
“At stake in the legislative efforts to address this threat is therefore not only the legitimacy and quality of Government but also the public’s faith therein, not only ‘the capacity of this democracy to represent its constituents [but also] the confidence of its citizens in their capacity to govern themselves,’ WRTL, 551 U. S., at 507 (Souter, J.,dissenting).”
Page 62:
“‘The importance of the governmental interest in preventing [corruption through the creation of political debts] has never been doubted.’” Bellotti, 435 U. S., at 788, n. 26.
“Even in the cases that have construed the anti-corruption interest most narrowly, we have never suggested that such quid pro quo debts must take the form of outright vote buying or bribes, which have long been distinct crimes. Rather, they encompass the myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of, some outlay of money the parties have made or will make on behalf of the officeholder. See McConnell, 540 U. S., at 143 (“We have not limited [the anti-corruption] interest to the elimination of cash-for-votes exchanges.”)”
Page 63:
“Buckley expressly contemplated that an anti-corruption rationale might justify restrictions on independent expenditures at a later date, ‘because it may be that, in some circumstances, “large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions.’” WRTL, 551 U. S., at 478 (opinion of ROBERTS, C. J.) (quoting Buckley, 424 U. S., at 45). [emphasis added]
Page 65:
“The influx of unlimited corporate money into the electoral realm also creates new opportunities for the mirror image of quid pro quo deals: threats, both explicit and implicit. Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.”
What’s Next?
I think it would be useful for Congress to re-write Section 441b to say that for both humans and corporations alike there will be a reasonable and realistic limitation (not a prohibition) on independent political expenditures commensurate with the government’s compelling state interest and the severity of the threat those independent expenditures pose to the electoral process.
What would that limit be? I don’t know. $5,000? $10,000? $25,000? Congress would need to conduct hearings on that question. It shouldn’t be $0 and it shouldn’t be unlimited, and it should apply equally to individuals, corporations, labor unions, and PACs, that is to everyone.
If such reasonable limits were imposed on everyone and if a case challenging that limitation reached the Supreme Court, the question then would be:
- “Does Congress have such a compelling state interest in preventing large amounts of money donated by a relatively small number of contributors from corrupting the political process that it may constitutionally limit independent expenditures by both humans and corporations alike to no more than the amounts set forth in the statute under challenge?”
I think Congress should give the Court the opportunity to decide that question.
–David Grace (www.DavidGraceAuthor.com)
