A key component of the landmark Bipartisan Campaign Reform Act ("BCRA") may be struck down
This Monday, the Court will issue its opinion in Citizens United v. Federal Election Commission (FEC). And citizens and advocates should be concerned that the Court will quietly strike down one of the most important provisions of the landmark Bipartisan Campaign Reform Act ("BCRA")
The case involves a dispute over a 90-minute on-demand video produced by Citizens United called "Hillary: The Movie." Citizens United planned to release the video in the heat of Senator Clinton's presidential campaign. The issue was whether release of the video as an on-demand broadcast or of the advertisement for the video were prohibited by BCRA because they were paid for using corporate general treasury funds and could both qualify as an "electioneering" broadcast. Of course people are free to criticize or praise a candidate, but if the video was in fact electioneering, it could not be paid for with general corporate funds, and the sources of contributions had to be disclosed. The prohibition on corporate general treasury spending on electioneering communications was upheld in a general challenge to BCRA in FEC v. McConnell in 2003, but was subsequently narrowed in the more recent Supreme Court decision in Wisconsin Right to Life II v. FEC last year.
We hope that the Court follows its own approach in Wisconsin Right to Life II, and recognizes that using general corporate treasury funds for the advertisement is clearly prohibited because it questions the qualifications of a presidential candidate to hold high office. But to spoil whatever remains of the surprise, many analysts and experts anticipate that the Court will rule in favor of Citizens United, and the only question is how broad the holding will be.
A bare majority of the Court disfavors many traditional campaign finance laws. Many regard the oral arguments in the Citizens United case as a disaster for the government, which was seeking to uphold the restrictions on using general corporate treasury funding. The remaining question, then, is how expansive the Court's ruling will be.
In recent cases, the Court has indicated that it will follow an approach that can best be characterized either as minimalism or as an incrementalist approach to ultimately transformative goals. This case presents an opportunity for a narrow holding. The Court could find that the prohibition on corporate spending on electioneering communications is still constitutional, but not as applied in this situation. In Citizens United, the Court could choose to interpret the statutory history of BCRA to find that a 90-minute campaign advertisement that can be accessed only by on-demand viewers is not the kind of electioneering communication the bill was intended to address. Such a holding would preserve the core of the reform.
Of far greater concern is the risk that the Court will use Citizens United as an opportunity to change drastically the process by which we choose elected officials. During oral argument, several Supreme Court Justices engaged in a series of hypothetical "what-if" scenarios, suggesting a much broader resistance to prohibitions on corporate spending on electoral communications. They even repeatedly implied that the restrictions were tantamount to "banning" books, despite the deputy solicitor general's protestations that the act applied to only broadcast communications, it only prevented corporations from using direct general treasury funds to pay for such communications while other sources of funds were available, and the restrictions were nothing new. Indeed, the Court has upheld prohibitions on corporate spending on so-called "express" campaign advertisements since 1990, and limits on corporate spending in elections date from 1907. The only difference wrought by BCRA was that it expanded the coverage of the restrictions to include broadcast "electioneering" communications in addition to "express" advocacy.
If the Court uses this case to reach a broad holding that any restriction on corporate spending on electioneering communications is unconstitutional, it would amount to a serious blow to efforts to curb the actual and perceived corruption in the electoral process. Corporations and labor unions, with their unique access to concentrated wealth, could amplify their particular message at a greater volume than it merits in light of its public support, and spend millions to influence the outcome of elections. This outcome could also silence the voices of those within a corporation and shareholders who do not agree with the political message that a particular corporation supports. Perhaps most significantly, it would signal that this Court is willing to abandon over two decades of precedents in a march to eradicate all forms of campaign finance regulations.
Reformers must wait with bated breath to see how the Court resolves this critical case. It's obvious that new technologies like on-demand transmission will require flexible approaches to the law. Let's hope that the Court approaches the issue with modesty. A broader holding would unleash unlimited - and perhaps even undisclosed - corporate spending in elections.
Today, the Court failed to reach a decision in Citizens United v. FEC, and set the case for reargument in September. The Court directed the parties to focus on the question of whether it would need to overturn two other Supreme Court decisions to resolve the issue in Citizens United. The two other cases, Austin v. Michigan State Chamber of Commerce and McConnell v. FEC, both held that Congress could restrict corporations from using their general treasury funds to pay for certain types of election advertisements.
Elliott Tarloff works in the Democracy Program at the Brennan Center for Justice at NYU School of Law.