Looking Back (Again) on Citizens United

March 20, 2015
posted by Bob Bauer

Lawrence Tribe and Floyd Abrams have each spoken or written recently about Citizens United, and their views, while not the same, suggest a continuing movement toward appraisals that are balanced between full embrace and outright condemnation. And, as Professor Tribe suggests, a measured judgment of the Court’ performance in that case helps with the re-orientation of the campaign finance debate that is long overdue.

Abrams singles out for criticism the attack on Citizens United’s affirmation of corporate free speech rights.  He finds it “uncontroversial” that that corporations have such rights: certainly media corporations do, and he gives examples of other forms of corporate expression, as in the production of films and books, that would be widely recognized. So whatever else is wrong with the Court’s reasoning in the case, he argues, this can’t be the problem.  He suggests that the persistence of this critique is mostly driven by a political judgment that corporate free speech is linked to undesirable public policy.

Professor Tribe concurs that corporations have free speech rights and that the contrary proposition could not be achieved without a “revolution” in constitutional law.  His objection to CU is that the Court has adopted a single-mindedly libertarian view of the First Amendment, “with one set of values trumping all others.”  Its commitment to this one-dimensional jurisprudential led to a decision far broader than necessary to protect, as Tribe believes the Court properly did, the production of a film documentary critical of a candidate for office.  What is needed, Tribe contends, is a jurisprudence that “seeks to synthesize competing conceptions of democracy,” striving for “the sensitive accommodation of competing constitutional values.”

Of course, the Roberts majority insists that it is being moderate in approach.   It has disclaimed the intention to eviscerate the core contribution limits, and it has blessed the imposition of disclosure requirements.  In the Arizona public financing case, the Court struck down features of that state’s scheme but stressed that it was not breaking with Buckley’s holding that voluntary public financing laws may withstand constitutional scrutiny.  One could argue, as some have, that the Court has been standing firm against an expansion of the Buckley framework—“enough is enough”, as the Chief Justice famously proclaimed in Wisconsin Right to Life— and that it was making a point of this in taking up and trimming back or invalidating altogether pieces of the McCain-Feingold initiative of 2002.

Skeptics reply that the Court is just advancing inch by inch in an attack on the basic framework of laws and rules established in the 1970’s.  They don’t trust the Roberts majority intentions and point to doctrinal proclamations– first and foremost ,the limited reading it has given to the compelling government interest in preventing corruption or its appearance.  And it did not help the Court dispel this impression of what Professor Tribe calls “opportunistic overreach ” when it rushed past more limited solutions to CU’s problems to establish a corporate and union right to make “independent expenditures.”

This haste to break new constitutional ground, an apparent lunge for a particular result out of doctrinal zeal, is a high cost of Citizens United.  But the Court decided as it did, and in the light of subsequent events, it is possible with the passage of time to something of considerable value in the reverberations from this case.

The corruption jurisprudence before Citizens United was shot through with ambiguity and inconsistency.  The Austin case that the court overruled was undoubtedly an “outlier”.  The McConnell case laid out a ground for the regulation of “corruption” in campaign finance that was unsatisfactorily vague and open ended and apparently needed to compensate for the inadequacies of the record. Now at least it’s clear: only the narrowest reading of conduct corruption suffices for constitutional purposes before this Court.

As a result, the Court has compelled attention to other problems with a corruption-based formulation.  This is not all bad.  Progressive forces were for years mobilized around demanding more of the same divisive and, to all appearances, ineffective regulatory program directed at ever-expanding claims about corruption.  As Chief Justice Roberts observed, the theme was one of adding “prophylaxis-upon-prophylaxis” in an interminable chase after “circumvention”. Wisconsin Right to Life v. Federal Election Commission, 551 U.S. 449, 479 (2007).  This was on a course to failure prior to Citizens United: it could not last, and it didn’t.

Since CU, more reconsideration has been given to these questions than at any time before.  It has driven fresh thinking and a reinvigorated debate.  Proponents of equality have worked to more precisely define and defend their doctrinal aspirations. Others holding similar views but wishing to keep away from the old “command-and-control” regulatory model have argued for “level-up” reforms that expand and enrich participation.  Animating these discussions are contemporary political concerns with income inequality and political polarization that give life to these discussions and deepen their relevance.  In stark contrast to these developments are the echoes of past controversies over “legalized bribery” and the difference between ordinary course politics and rank “corruption.”

Sometimes it takes even judicial overreach like Citizens United to shake up the discussion and make change possible.

Leave a Reply