Professor McConnell’s Defense of Citizens United

May 1, 2013
posted by Bob Bauer

Professor Michael McConnell defends Citizens United, but it is a highly qualified defense. He is critical of the Court’s craftsmanship—the “overlong opinion” is the least of the problems, secondary in significance to a holding that ranged “beyond what the parties argued or the facts demanded,” and that has prolonged the jurisprudential agonies inflicted by the long-standing contribution/expenditure distinction. McConnell believes that the Court, relying on a rationale he views as “naïve” or “obtuse,” missed a better argument for the outcome. So much for the defense. He then proposes an alternative way of seeing—and more favorably evaluating—the decision to bless corporate independent spending.

The Press Clause provides this alternative ground, he argues, because the Clause protects press activity, not specific institutional media entities. The criticism of candidates prior to elections is a press function available to any who wish to perform it—book authors, pamphleteers, or, as in this case, the non-profit corporation Citizens United that made a movie assailing Hillary Clinton’s qualifications to be President. To turn the case into this direction has the additional advantage of solving the problem of explaining why independent expenditures receive the constitutional cover they have enjoyed. It is not because they lack corruptive potential—McConnell has no use for this claim, dismissing it as “dubious…at the time of Buckley” and “even harder to believe today”—but because regulation conflicts with the Press Clause. Viewed from the Press Clause perspective, expenditures and contributions are more clearly distinguishable.

This is an original re-casting of the issue posed by Citizens United and of an answer that the Court could have provided for its conclusion. It is not clear that it is the sharp resolution, in doctrinal terms, that McConnell intends it to be. On his account, one has only to substitute “speech” for “press,” and the argument for CU does not seem all that different from the standard defense heard from quarters friendly to the decision. As McConnell sees it, the Press Clause embraces any and all forms of candidate advocacy by whoever, in whatever form, offers it. Advocacy equals press.

So on the McConnell theory, it does not matter, generally, whether we say that the corporation was engaged in a press function or engaged in free speech: we are saying the same thing. It is true that for Press Clause purposes, McConnell would distinguish commentary about candidates from more operational activity on their behalf, such as hiring vans to carry workers to the polls. But the debate about independent expenditures, in its most consequential form, is about just such commentary, not about field-based get out the vote activity. In this debate, the one (one could argue) that counts, the free speech and Press Clause defenses of Citizens United seem much the same.

And it is particularly striking that Professor McConnell advances this equation of press and candidate advocacy when its practical effect would be to end the debate over whether independent expenditures present any risk of corruption. McConnell rejects the suggestion that independent expenditures are not corruptive—this is the suggestion that he finds “naïve, or obtuse,” and the stakes for him are high, inasmuch as he believes that:

The current system favors incumbents and breeds an unhealthy collaboration between government and powerful entrenched economic interests, both labor and corporate, at the expense of small business, ordinary citizens, free enterprise, and the forces of economic change. I find the majority’s sunny dismissal of the corrupting influence of independent expenditures wholly unpersuasive.

McConnell is not alone in shaking his head over the implausibility of this proposition, and there is every reason to believe that litigants will continue to build records and press the Court to reconsider its position that independent expenditures cannot be corrupting. But if the Press Clause were to be the foundation for these expenditures, then the question of corruption, or its appearance, would be erased from contention once and for all. This is the best McConnell imagines could be hoped for: to accept that independent expenditures largely lie beyond the reach of regulation, but for reasons better grounded doctrinally than what the Court has offered within the badly worn Buckley framework, and to look to other ways of invigorating democratic life, such as measures to revive parties, increase contribution limits, and provide tax credits for small contributions.

However one views his reform program, Professor McConnell is right on two key points of his defense of Citizens United. The decision in CU is shoddy work, and neither that decision nor any other the Court has issued in recent years has helped shore up a campaign finance doctrine built on the distinction between contributions and expenditures.

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