Heather Gerken writes clearly and with invigorating common sense about issues that aren’t routinely given such treatment. She has set out to correct misreadings of Citizens United and she has an alternative reading of its importance. Rather than getting caught up in dreary doctrinal squabbles, she is calling for attention to the adjustments that campaign finance law and doctrine have induced political actors to make and the consequences for political institutions and the distribution of political power. Heather is progressive in her politics but refreshingly practical. In her Marquette Law lecture, she argues that by re-interpreting (or clarifying) the anti-corruption interest, Citizens United has helped move power to “shadow parties,” weakening the traditional political party and distancing the primary party actors in these shadows from the “party faithful” once relied on to press doorbells and hit the streets.

This is a powerful, well-made point, and it should encourage discussion—perhaps also driving analysis of campaign finance reform into a more productive direction. One question is whether Citizens United is really at the heart of these developments and why we might care one way or the other.

Heather is unquestionably right that in Citizens United, the Court declared itself definitively on the narrow scope of the anti-corruption interest. Gone was any doctrinal reliance on ingratiation and the facilitation of access; now legislators and regulators had to live with a strict version of the standard of quid pro quo corruption. But it is less certain that in this respect CU broke new ground. Buckley, in 1976, did. Citizens United represents the court’s resistance to the view that somehow the Austin case had extended what Buckley had to say about the prevention of corruption, or its appearance, as the grounds of regulation. And the case was decided in the specific context of corporate spending, pitting the court majority against the position that corporate spending power justified a more flexible understanding of the way in which money may coax corrupt IOUs out of legislators.

We’ve seen in recent years that corporate money is not the fuel that independent activity has run on. Lawyers pondering what was necessary for this money to be accepted and spent independently would not care all that much about Citizens United and had little reason to feel more secure about their clients’ position after Citizens United than before. Buckley was fully sufficient to provide the necessary constitutional cover.

This is not a defense of the reasoning of Citizens United, but more a question of where to situate it in tracing the origins of the problem that Heather has identified with the growth in “shadow parties.” Over the course of the development of campaign finance, such organizations may have endured a long gestation, but their appearance was inevitable. Campaign finance lawmaking and jurisprudence has been singularly inhospitable to party institutions, most notably in McConnell. Still earlier, in the Colorado Republican cases,  the Court first recognized parties’ right to independent expenditures if they keep their distance from their own candidates, then upheld limits on spending they coordinated with those candidates. And then there is the contribution of Congress, weightier even than that of the courts: McCain-Feingold, which attacked soft money sources of parties and set them inexorably on the road to the phenomenon that Heather describes of party elites funding party-type interests outside the formal party structure.

Only up to a point does it make a difference where we locate the shift in today’s campaign finance jurisprudence. There is a tendency (not one that Gerken falls into) of trying to simplify the complexity of campaign finance by searching out culpable actors for what are seen to be unwelcome, unhealthy developments. But the Court in Citizens United did not fundamentally alter the course of constitutional doctrine on independent spending. That course was set by Buckley, and it took just a few years to see where things were headed. And Congress’s response has been both ineffective in patching up the holes that quickly opened up and in reshaping the arguments about its authority.

Linda Greenhouse recently argued that the Roberts court has been deregulating campaign finance “brick-by-brick.” One could also say that the Buckley framework, on an insecure foundation, began to topple with only a light push. Citizens United plays its part in this tale, but it is more of a bit part, far from the leading role. Accepting that will help, as Heather Gerken’s insightful piece has helped, keep the debate off the subject of villains and looking ahead, not back.

Leave a Reply