ACS Panel on Citizens United

This morning I attended a panel at the American Constitution Society conference titled “Citizens United Two Years Later: Money, Politics and Democracy at Stake.” The panel was moderated by Democracy editor Michael Tomasky and featured University of Montana law professor Anthony Johnstone, Fordham law professor Zephyr Teachout, longtime campaign finance activist Fred Wertheimer, founder Democracy 21, Capital University law professor Bradley Smith, Brennan Center constitutional fellow Monica Youn, and Laurence Gold, Associate General Counsel, AFL-CIO. It was an interesting panel, and I’ve summarized the discussion below the fold.

Fred Wertheimer, a longtime founder of Democracy 21, argued “inherently corrupt system of unlimited contributions” that we observed prior to 1970s campaign finance reforms is “back with a vengeance” due to Citizens United and its progeny and the unleashing of SuperPACs.  Quoting Judge Richard Posner, Wertheimer suggested there is no reason to think that large public donations to candidate-focused SuperPACs are any less corrupting than large contributions made directly to campaigns.

Professor Zephyr Teachout of Fordham discussed the founding era concern with the role of money in politics that was widely discussed in the debates over ratification of the Constitution, and that there was substantial concern with corruption in politics throughout American history.  No “credible constitutional vision” that is consistent with allowing an individual to “threaten unlimited spending” unless their particular policy vision is adopted.

Professor Bradley Smith of Capital University, former chair of the Federal Elections Commission, given a bit of extra time for representing the “other side,” was put on the spot right off the bat to defend the CU claim that independent expenditures do not pose a threat of corruption, and noted that the way to understand this claim is not that there can never be corruption from independent expenditures, but that such concerns are not sufficient to overcome First Amendment protection for political speech.  Turning to his planned opening remarks, Professor Smith noted that the anti-CU position would have allowed the suppression of Michael Moore’s “Fahrenheit 911” which, after all, was funded and created by a corporation.  To Professor Smith the truly radical aspect of CU is the idea, endorsed by four justices, that the participation of a corporation in the production or distribution of a movie or other form of communication is enough to allow the federal government to prohibit or limit it, whether that corporation is CU, Barnes & Noble, or Dreamworks.  Professor Smith  quoted Justice William Douglas who, joined by Chief Justice Warren, inveighed against the idea that political speech could be limited by the government.  Finally, Professor Smith noted that first prosecution of political speech for violating federal campaign laws was the Nixon Administration’s attempt to prosecute a group that purchased a full-page newspaper ad for urging Nixon’s impeachment for invading Cambodia.

University of Montana Professor Anthony Johnstone discussed Montana’s history of corporate influence in Montana politics, and the state’s early efforts to control “corrupt practices,” including limits on corporate speech and expenditures in elections.  Montana’s history is particularly relevant because the Supreme Court of Montana rejected a CU-based challenge to Montana’s laws.  A cert petition in this case is pending, raising the hope among CU’s opponents that the Court will reconsider this decision.

Lawrence Gold, associate general counsel of the AFL-CIO, noted the history of federal prosecutions of unions for the campaign contributions and participation in the early post-War era. Gold suggested that while corporations and unions have been regulated in tandem, federal labor law limits union activities in a way that corporate and nonprofit activities are not so limited.  “You cannot have a strong democracy without a strong labor movement,” and whatever one thinks about how the law should limit the activities of other organizations, there is no basis for placing limitations on the political participation of unions.

The Brennan Center’s Monica Youn suggested the focus of some progressive groups and politicans on overturning CU is “unsatisfying” given current realities.  While public criticism of the decision, and constitutional arguments against it have been “useful,” progressives need to “move beyond” that and recognize that money in politics is not merely a constitutional problem, but also a political problem, and that there are many potential campaign reforms that would not raise CU-related constitutional concerns.  Many reforms, ranging from public financing, disclosure, and greater regulatory coordination are possible.  Even if CU were overturned tomorrow, Youn said, there would still be substantial work to do to address the problems caused by the role of money in politics.

Tomasky asked the panel to discuss the “immediate impact” of CU in the fall election.  In response, Wertheimer noted that while most of the money will be traditional campaign donations that are limited and disclosed, there will be a large amounts of money focused on a handful of races that comes from unlimited donations and potentially secret donations, and that such funding will have a substantial effect on those elections.  Wertheimer said it is a myth that candidate-specific SuperPACs are not truly independent of the campaigns, and that it should be possible to place limits on such SuperPACs within the bounds of CU.  Failure to do so, he warned, would effectively allow all incumbents to benefit from the support of purportedly independent SuperPACs that are dedicated to their reelection.

Wertheimer also suggested that some, such as Senator Mitch McConnell, are beginning to challenge disclosure requirements.  In response, Professor Smith argued that the real debate is not about rolling back current disclosure requirements but whether such requirements should be extended to include, for instance, the requirement that political organizations disclose contributors or members.  Wertheimer responded that the contours of the disclosure debate are different today because 501(c)(4) organizations are not subject to disclosure requirements and, post-CU, are now allowed to fund campaign ads, a point echoed by Professor Johnstone – though Professor Smith noted that prior to CU, (c)(4) organizations could fund ads that attacked candidates without directly urging their election or defeat.  Professor Teachout added that the focus on disclosure is important because if people don’t know what’s occurring with elections, they cannot identify corruption and seek to control it.  Monica Youn noted that while we know that individuals such as Sheldon Adelson have written large checks to SuperPACs, there have been substantial anonymous donations, such as two $10 million contributions to American Crossroads from undisclosed individuals.

Laurence Gold noted that many of the new disclosure requirements being discussed could have a significant effect on progressive groups that are structured as non-profit corporations, and that relatively small expenditures on political speech could force dramatic and expensive disclosure on non-profit advocacy organizations.  In response Professor Teachout raised the concern about efforts to protect “liberal power” without thinking more broadly about efforts to limit power and potential corruption within the political process.

Wertheimer noted that eight justices have endorsed the constitutionality of broad disclosure requirements, but Professor Smith also noted that disclosure has a different meaning today now that the information is instantly available on the web, often connected to the street addresses of individuals’ homes and that the real burden of disclosure requirements tend to impose a disproportionate effect on smaller organizations.  He also acknowledged that some are concerned about disclosure insofar as some groups seek to use disclosure to sanction those who fund or support candidates or speech to which they object.

Professor Teachout noted that the current Court is the least politically experienced court in some time (if not in the nation’s history) and suggested this means the Court is the wrong place to be having the debate over what sorts of limitations should be allowed (though didn’t note that more politically experienced liberal justices, such as Justices Douglas and Warren were far more critical of limitations on political activity than those on the Court today).

Tomasky asked Professor Smith to explain the libertarian concerns about public financing. Professor Smith noted that public financing does not eliminate concerns about what sorts of independent campaign expenditures can or should be limited.  Further, Smith noted that the primary libertarian concern with government regulation of campaigns is that, over time, politicians will tend to adopt those reforms that benefit incumbent politicians.  Continuing the discussion of public financing, Youn noted that many state-level public financing programs are alive and well, and that such programs can make a difference as it’s not necessary to outspend one’s opponents as much as it is to have a critical mass of funding to ensure adequate participation.

Tomasky asked whether the “original sin” was CU or Buckley.  Professor Teachout said yes, and that Buckley should be overturned (which was also Justice Stevens’ position).  This, in some respects, is the real division over campaign finance regulation.  Insofar as many are critical of CU, their real objection is to Buckley’s extension of First Amendment protection to campaign spending at all.