Citizens United and the “Impossible Dream”

July 13, 2016
posted by Bob Bauer

Justice Ginsburg’s recent press comments have been noted mostly for her openly expressed disdain for the Trump candidacy. Less surprising in the remarks was the Justice’s “impossible dream” that Citizens United be overturned. She has said this before, and since she dissented in that case, there is not much news here, unless anyone still had doubts that for this Justice, the killing off of that decision is a priority.

The comment was reported at the same time as the Complaint filed with the Federal Election Commission by Representative Ted Lieu and others who intend to set into motion the reconsideration the Justice is hoping for. And so it invites an appraisal of its prospects for accomplishing the Justice Ginsburg’s “impossible dream.”

As my colleague Marc Elias has pointed out, the FEC cannot succeed; this is a lost cause. When the Complaint fails, it may do little more than unnecessarily promote the belief that CU is here to stay. It is not clear why this is the best legal maneuver, or the most effective exercise in public communications, in the attack on Speechnow and Citizens United.

Aside from the question of strategy, the Complaint itself  is a surprisingly subdued performance. It has a bit the feel of going-through-the-motions: doing the least possible to set up the agency dismissal and the move to the courts. True, the Complainants knew that the outcome at the agency was inevitable and there is time later to build their argument. But the case they preview in the Complaint seems flat and this certainly can’t help the Complainants in their subsequent appeal.

The Complaint makes its case on three grounds: 1) there are a fair and growing number of Super PACs, and they are spending gobs of money; 2) the public has lost confidence in government, thinks it corrupt, and when asked, believes that large contributions to Super PACs would add to the corruption; 3) at least one study suggests that politicians are involved indirectly with Super PACs in a way that promotes quid pro quo corruption.

These points are knitted together in a total of 6 pages, barely more than 3 of which make up the entire section entitled “Corruption and the Appearance of Corruption through Super PACs.” There is a problem with relevance: the citation to the total amount of Super PAC spending leaves hanging the question of how it wraps into an argument about corruption or its appearance. There is a problem with the reliance on the link between public confidence in government, as measured by polling data, and Super PACs: the polls have for decades connected campaign finance with perceptions of corrupt government, but the significance of this has been questioned in more than one study, and nothing in the presentation demonstrates a worsening of public confidence in the wake of Super PACs. And there is a problem with the claim of elevated corruption resulting from candidate involvement with Super PACs: it relies on one study, and that study’s finding that there is “no direct evidence” of quid pro quo corruption is slipped into a footnote and dismissed as “expected.”

It is probably not helpful to the Complainants that while they are filing this action at a time of low, very low, public confidence in government, the most prominent reasons given for this unhappy affairs do not involve Super PACs.  This does not mean that campaign finance in general, and perhaps Super PACs as a symptom of the larger problem campaign financing presents, cannot be assigned a share of the blame. It would suggest that, when multiple factors bear on the sharply negative public judgment of government integrity, it would be important to offer a more than perfunctory showing on the role of money-in-politics and Super PACs.

Justice Ginsburg may be right about the distant chance of a successful challenge to Citizens United. Of course, it may come about, when it does, because a Court with new Justices hears the case and is intent on just flipping the result. But it may also matter how compellingly the case is made. The Complaint now before the FEC does not seem by this measure likely to achieve the impossible.



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