This post was co-written by Tom Donnelly, Counsel and Message Director of Constitutional Accountability Center.
The future of the Supreme Court is the 800-pound gorilla in the room this election season that neither candidate seems to want to talk about much. That's what made President Obama's Rock Center remarks last week on Citizens United -- a 5-4 ruling by the Court in 2010 that unleashed the specter of unlimited corporate expenditures on our nation's political system -- so important. Asked what problem in the political system he'd solve if he had "unlimited powers," Obama responded that the amount of money his campaign, the Romney campaign and the Super-PACs were spending was "ridiculous," and he blamed Citizens United, saying it was wrong as a matter of constitutional law and "bad for our democracy."
This is not the first time the president has raised this critique. As he noted last week, Obama took the "fairly unusual step" of calling out the conservative majority on the Court for its 5-4 ruling in Citizens United in a State of the Union speech shortly after the opinion was released. This summer, President Obama even suggested that, if the Court did not reverse course, he would support a constitutional amendment to overturn the Court. Clearly Citizens United hit a presidential nerve. Just as clearly, Citizens United has become a very potent rallying cry for progressives trying to raise concerns about the Roberts Court and to promote political reforms.
But the very potency of Citizens United as a political weapon has produced a backlash of sorts among a small but vocal cadre on the libertarian left who supported the outcome in Citizens United. No one wants to be remembered for supporting a ruling that is quickly being elevated in progressive circles to a pantheon of conservative judicial atrocities that includes Lochner v. New York and Bush v. Gore. Thus comes a rather surprising argument from these left-leaning libertarians: Citizens United isn't really that important after all.
This argument, spelled out this summer in an opus by Matt Bai in The New York Times Magazine, goes like this. Citizens United permits unlimited spending by corporations to support the election of candidates of their choice. Previous rulings by the Supreme Court had already permitted unlimited spending by individual Americans. The available evidence indicates that most of the flood of money being pumped into the 2012 campaign is coming from billionaires, not corporations (Sheldon Adelson, not Exxon). Because this could have occurred before Citizens United, critics are wrong to blame our problems on the ruling. "Liberal delusion" is how Ira Glasser, a former head of the ACLU, dismissively labels the progressive (and the president's) criticism of Citizens United.
The error in these "Citizens-United-is-not-the-problem" claims, most fundamentally, lies in their effort to treat Citizens United in isolation. While it is certainly true that there were problems with our campaign finance system before Citizens United, it is also undoubtedly true that Citizens United caused a very big new problem -- the unleashing of unlimited corporate spending on electioneering. In the words of Steven Law, head of American Crossroads Super PAC, "the ruling served as 'a Good Housekeeping seal of approval for nervous general counsels' at corporations considering donations." Citizens United also pushed along a much larger problem: the systematic dismantling of the campaign finance system by the Supreme Court's conservative majority.
Seeing this completely requires breaking down the Citizens United ruling into its three constituent parts. Citizens United is the culmination of a thirty-five-year campaign by opponents of campaign finance reform to get the Supreme Court to endorse the absolute equivalence of three things that are not really equal: money = speech; corporations = people; and corruption = bribery. Because the Court treats money as a form of speech, efforts to stem the flow of cash flooding into the political process are subject to "strict scrutiny," the most rigorous form of Supreme Court review. Since the Court treats corporations the same as individuals, efforts to limit corporate campaign expenditures are also subject to this level of scrutiny. And because only efforts to rid the American political system of quid pro quo forms of corruption constitute the "compelling governmental interest" necessary to withstand this scrutiny, many campaign finance laws at the federal and state level are doomed.
Take the first equation: money = speech. Former Chief Justice William Rehnquist, who for most of his tenure on the Court was a surprising critic of the campaign finance jurisprudence emerging from the pens of his conservative brethren, once warned that the Court was confusing "metaphor with reality." However, following Citizens United, there can be little doubt about where the Roberts Court stands. Money equals speech, plain and simple. Indeed, as Monica Youn of the Brennan Center notes, this equivalency is at the core of Justice Kennedy's Citizens United opinion.
But, the Citizens United majority didn't stop there. Not only did the Court's conservatives equate money with speech, but they also equated the free speech rights of corporations with those of individuals. In so doing, the Court cast aside recent Court precedent, as well as a century's worth of laws designed to limit the influence of corporate money in our politics. While it's true that a divided Court struck down a state law limiting corporate independent expenditures in ballot initiative elections in 1978, the Court made it clear just over a decade later that governments could limit such expenditures in candidate elections -- a conclusion reaffirmed by the Court as recently as in 2003. Nevertheless, in Citizens United, the Court reversed course, concluding, for the first time, that the political speech of corporations was entitled to the same protections as that of individuals -- never mind that corporations were never mentioned in the Constitution, that the Founders had viewed corporations with suspicion, and that, from its earliest days, the Supreme Court had recognized that governments could treat corporations differently than individuals.
Finally, and perhaps most importantly, the Citizens United majority also equated corruption with bribery -- an abrupt move that (at least for now) settles a longstanding debate on the Court. Since Buckley, the Court had recognized only one "compelling governmental interest" that justified the regulation of money in politics: a government's interest in combating corruption or the appearance of corruption. But in previous cases -- and as recently as in 2003 -- the Court endorsed a rather expansive definition of "corruption," one that encompassed not only quid pro quo exchanges, but also the use of money to buy access and influence. In Citizens United, the Court narrowed this definition considerably, concluding that only "quid pro quo arrangements" could create a potential for actual or apparent corruption and adding, in turn, that "independent expenditures, including those made by corporations, do not give rise to [such] corruption."
In the end, even if Citizens United isn't the only problem facing our campaign finance system, there's little doubt that the decision has put reformers in an ever-shrinking constitutional box. Following Citizens United, it's all but impossible for reformers to control the influence of corporate money in our politics, root out corruption (in all its forms), and ensure that our government truly is, as the Founders envisioned, "dependent upon the People alone." That's, no doubt, why President Obama keeps raising concerns about Citizens United, and reason enough for progressives everywhere to keep up the fight -- no matter what Ira Glasser and his compatriots might say.
This post is cross-posted on Text and History.