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Explaining Citizens United

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The Supreme Court's decision yesterday in Citizens United v. Federal Election Commission has rightly generated a lot of attention. It is, indeed, a profoundly important decision that will have a dramatic impact on American politics. In a five-to-four decision, with the justices voting along familiar lines (Roberts, Scalia, Kennedy, Thomas and Alito on one side; Stevens, Ginsburg, Breyer and Sotomayor on the other), the Court held unconstitutional a key provision of the McCain-Feingold Bipartisan Campaign Finance Act that had placed limits on the amount of money corporations and unions could spend to support or oppose political candidates in the closing days of a campaign. The goal of the Act was to limit the impact corporations and unions could have on American politics. What I want to do in this post is to explain the decision.

After Watergate, Congress enacted legislation that limited both the amount that individuals and organizations could contribute directly to political candidates and the amount they could independently spend in support of or in opposition to particular political candidates. The purpose of the legislation was to create a "fairer" political process, both by reducing the opportunities for corruption and improper influence and by "equalizing" to some degree the influence different individuals and organizations could have on the political process. Just as we have "one person, one vote," the idea was the move towards a system in which we have "one person, one dollar."

In Buckley v. Valeo, decided in 1976, the Supreme Court held that the contribution limits were constitutional, but that the expenditure limits violated the First Amendment. In reaching this result, the Court acknowledged that political contributions and expenditures are "speech" within the meaning of the First Amendment, that the most serious infringements of First Amendment rights are laws that discriminate against particular points of view (for example, "No person may criticize the war"), and that the contribution and expenditure limits did not discriminate against particular points of view, but applied across the boards, without regard to whether the "speaker" was supporting a Republican or a Democrat. It therefore analogized these limits to laws regulating the size of billboards or the hours in which one may use a loudspeaker in residential neighborhoods. That is, like those laws, the contribution and expenditure limits regulated speech without regard to the speaker's particular views. In such circumstances, the Court generally applies of form of "balancing" to determine whether the law is constitutional. It assesses the severity of the law's impact on free speech, and then asks whether the government's interest is sufficiently weighty to justify the particular restriction at issue.

In Buckley, the Court held that the contribution limits (which limited how much one could give directly to a candidate) were constitutional, because the government has a substantial interest in avoiding the appearance and reality of corruption and undue influence and because the impact on free speech was relatively modest. This was so because individuals who wanted to spend more than the law allowed them to contribute directly to a particular candidate could still spend that money to support the candidate in other ways (for example, by contributing to a PAC). On the other hand, the Court held that the expenditure limits were unconstitutional. The Court reasoned that to tell a person that she can spend $X and not a penny more to support her favored candidate was a severe restriction on her right to free speech. So serious a limitation on the individual's freedom, the Court held, could not be justified by the interest in "equalization" or in avoiding the appearance or reality of undue influence.

After Buckley, the Court began to focus on the issue of corporations and labor unions. The question, in short, was whether such organizations had the same First Amendment rights to spend money in the political process as individuals. In 1978, in a sharply-divided decision in the Bellotti case, the Court held that the speech of corporations is entitled to the same protection under the First Amendment as any other speech. In 1990, however, in the Austin case, the Court tacked in the opposite direction and upheld restrictions on corporate expenditures. It was difficult, if not impossible, to reconcile these two decisions. In recent years, the Court has decided several cases in which the justices have divided quite bitterly over this issue. Roberts, Scalia, Kennedy, Thomas and Alito have consistently found ways to interpret Austin very narrowly, whereas Stevens, Ginsburg, Breyer and Souter/Sotomayor have consistently followed Austin.

In Citizens United, the dispute finally came to a head, and the five "conservative" justices overruled Austin and held that corporations and labor unions have the same First Amendment rights as individuals. Thus, any restriction of their freedom to spend unlimited amounts in support of their favored candidates violates the Constitution.

So, what are the arguments on each side? Apart from the issue of precedent, the dissenters in Citizens United see the problem this way: (1) Think of a town hall meeting or a presidential debate in which the moderator proposed to sell debate time to the highest bidder. Thus, in this town hall meeting or debate, which would last two hours, the moderator would sell each 15-minute segment to the person willing to bid the most money for it. We would likely see this as a crazy system. That's no way to run a democracy. We want our debates to be more structured and fairer than that. Each side should have more or less equal time to makes its case. Congress, which enacted the legislation at issue in Citizen United, wanted to make political campaigns a bit more like presidential debates and town hall meetings. It wanted to ensure that the side with the most money doesn't automatically dominate the debate for no reason other than the fact that it has deeper pockets. The dissenters in Citizens United accepted Congress' judgment this is a compelling justification for restricting political expenditures.

(2) Moreover, they argue, this argument is especially appropriate with respect to corporations and labor unions. They are, after all, artificial entities created by the government for the purpose of enabling them to amass huge amounts of money in order to operate efficiently in the economic marketplace. But they were not created for the purpose of enabling them to amass huge amounts of money so they can overrun the political process. It is perfectly reasonable, the dissenters argue, for the government to limit the amount such organizations can spend to influence our democracy. Indeed, in other ways we don't treat corporations or labor unions as "people" - they have no constitutional right to hold political office or to vote, for example, so why should they have the same First Amendment speech rights as "real" people?

The five justices in the majority in Citizens United see the problem quite differently: (1) In their view, any restriction on the amount that individuals or organizations can spend in the political process represents a severe limitation on First Amendment rights. Even if the law is neutral with respect to the particular points of view expressed, it is still a profound limitation on individual liberty. Moreover, corporations and unions are just associations of individuals, and there is no good reason why associations of individuals shouldn't have the same First Amendment rights as the individuals themselves. Indeed, the NAACP and the New York Times have First Amendment rights, so why not General Motors and Bank of America?

(2) Moreover, they argue, any legislation that so directly shapes the political process must be highly suspect. One thing we know for sure about politicians is that they will not make laws that disadvantage them. Thus, we should not take this sort of legislation at face value. If one party controls both houses of Congress and the presidency, and it enacts campaign finance legislation, we can be sure that in subtle but important ways the legislation will be designed to promote the partisan political interests of that party. And even if one party doesn't control all these agencies of government, we can be sure that any legislation the government enacts will be designed to serve the interests of incumbents. Thus, not only is such legislation a serious limitation on First Amendment freedoms, but the courts should be highly suspicious of such laws, which are paradigmatic examples of the fox guarding the hen-house.

So, there you have it. My point in writing this is not to persuade, but to explain. My own view is that the dissenters have the better of the argument, particularly with respect to corporations and unions (though I would hold expenditure limitations on individuals unconstitutional). One of the interesting things about Citizens United is that the "conservative" justices, who claim to exercise judicial restraint, are reaching out in this case to assert a very aggressive interpretation of the First Amendment. In this sense, and in the context of many other highly controversial areas of constitutional law -- such as affirmative action and gun rights -- these justices do not live up to their billing that they merely call "balls and strikes." This is a very activist decision that will fundamentally transform American politics in the years to come.