Oral arguments at the United States Supreme Court today could mark the end of more than 30 years of struggle for a tranche of conservative and libertarian intellectuals -- and for corporations that have had to find inglorious and meandering ways to influence the political system. Also at stake is how the court interprets the First Amendment. The stakes are that big.
Four weeks before the traditional First Monday in October start to its term, the court is taking the unusual step of convening to hear a case that does not involve life or death -- Citizens United v. FEC. Why the rush? Its ruling might very well require Congress to rewrite campaign finance laws in the middle of an election year, and the court is trying to be generous. The Supremes heard this case in March, but then it decided that the narrow range of issues at stake didn't do justice to the case. Like an edited version of a blog post, the court sent the case back to the litigants with the instruction to consider much broader principles than whether a certain action violated campaign finance laws.
The plaintiff is Citizens United, a non-profit run by conservative activist and former House investigator David Bossie. During the 2008 campaign, Citizens United accepted donations from the non-political bank accounts of corporations. Using some of that money, as well as other funds solicited directly from individuals, Bossie produced a critical movie about Hillary Clinton. The FEC, interpreting campaign finance laws, told Bossie it would be illegal for him to run television ads promoting his movie during the Democratic primaries because corporate cash can't be used to directly influence elections using television and radio. Bossie sued the government, and it was kicked up to the Supreme Court, which heard oral arguments in March.
It became apparent that the case touched many trigger points. It seemed, to opponents of campaign finance regulations, a perfect example of how the current legal framework directly impinged upon Bossie's free speech rights with no discernible public interest to balance out the restriction. The legal community that fights against campaign finance laws decided to try and use the case to challenge the entire edifice of law, philosophy and politics that limits what corporations and individuals can give. And the court's skeptics -- two new skeptics -- Justices Alito and Roberts -- agreed, especially after Obama's deputy solicitor general argued that, under the current law, the government could ban certain books during elections.
In 1976, a Solomonic court, in Buckley v. Valeo, birthed our modern system of campaign finance. It upheld parts of a 1974 law that limited the amount of money that individuals can give to political campaigns but found that the Constitution prohibited similar limitations on what campaigns or candidates can spend. By permitting contribution restrictions -- but not spending restrictions -- the court was trying to strike a balance between fairness and liberty. It interpreted the first amendment as a protective or prophylactic mechanism -- the compelling state interest here is that the political system becomes corrupt if people can directly donate any amount of money they want to give to campaigns at any point. The law was ostensibly neutral about political outcomes and therefore, in the court's reading, did not unnecessarily restrict speech; it merely protected the right of individuals to "speak" more fairly. In other words, the court tried to, in Ronald Dworkin's phrase, protect "citizens from politics" when politics conflicted with their freedom.
For years, dissenters have marveled at the Buckley majority's reasoning, noting that the ruling itself produced significant distortions -- that is, non-politically-induced changes -- to political campaigns, and that functionally made it more likely that individuals would try to influence campaigns in subtle, less direct and ultimately less accountable ways. These skeptics took an entirely different point of view about the First Amendment: it protects speech; and, in particular, political speech, and is less concerned about an equal material platform from which to influence campaigns than it is with the iron-clad guarantee that political speech must be protected at all costs. Representative of this reading: "If it is OK for a millionaire to spend his own money promoting his own campaign, why can he not give that money to someone else, who might be a more effective advocate for that millionaire's views, so that this other person can run for office," asks a Cato Institute blogger.
Campaign finance regulations, he writes, are thought restrictions because political contributions are a form of political expression.
In 1990, in Austin v. Michigan Right to Life, the court reaffirmed a longstanding precedent that treated citizens and corporations and unions differently in matters of politics, reasoning that individuals acting alone to influence the system deserved more protection that unions and corporations, who aggregate, magnify and ignore constituent points of view, and who are more likely to receive special benefits from governments (state, local, or federal).
As noted, unions and corporations found other ways to spend money. Buckley did not prohibit spending money to influence Congress to vote on particular issues, essentially giving license (whether intended or not) to create advocacy advertisements tied to specific issues that were clearly intended to influence elections. That was easy, and soft money became the main conduit for influence peddling. In the eyes of campaign finance reforms, it had become the ether linking special interests and politicians. So the McCain-Feingold campaign law, known to the initiated as "BCRA," imposed new restrictions on this "soft money," including a complex set of rules for how those funds can be used in the 120 days before an election. Since Republicans had come to rely on soft money and larger checks, the ruling hurt them disproportionately, as did its timing: Democrats, out of power, embraced new technology and rebuilt their small donor base, as did the difference between unions, who could spend the money on even softer political activities like voter registration, and corporations, who don't have the resources to employ foot soldiers in the same way.
The regulations upon regulations have created what even the reformers acknowledge is a patchy system, kind of like tape on a leaky balloon. This metaphor assumes that money is inherently corrosive when a single person or entity can open the spigot and direct it in any particular direction. It's no surprise that entities that like to spend money on politics do not subscribe to this premise. In political circles, arguments about campaign finance often start out with a reference to free speech but degenerate into a debate about which political party will benefit more from rule changes. This seems to be how Congress reasons as well; it would behoove any observer of this debate to not assume that the Supreme Court's majority will not tailor its ruling to fit either a preconception about money and democracy, or a gut sense that pushing certain buttons, rather than others, will help their party and their causes. Looking at the array of liberal interests who oppose finance restrictions, it is tempting to see this fight as a battle for principle, rather than for expediency. But expediency isn't always a bad thing in democracies, and money is literally the currency that interest groups use to perpetuate their existence. (As the old saying goes, Union, Labor, Party, Life.)
So, the court will hear Citizens United for a second time, and has given itself a much broader mandate. There are two justices on the bench who have never had the chance to rule on BCRA before and whose background suggests that they're skeptical of campaign finance regulation in general.
In practice, the court isn't likely to tear down the entire Buckley wall, but almost every observer expects the court to expand the ways that how corporations and individuals can influence elections. If moneyed interests are inherently corrupting, this is bad news. If they're not -- and they're just exercising their legitimate speech rights -- this is thrilling. Here is where the authors of BCRA are at a disadvantage: the campaign finance laws have gotten so cumbersome that even proponents of regulation in general are anxious about the law's constitutionality and feasibility.
In some ways, the court's rehearing is a shot across the bow to Congress. The Chief Justice, who is known for this sort of maneuver, seems to be suggesting that Congress ought to take a new look at campaign finance legislation, or else the court might be forced to intervene in a more radical way.