The Past as Prologue: From FEC v. Davis to Citizens United?

Exactly one year ago today, I posted Initial Thoughts on FEC v. Davis: The Court Primes the Pump for Striking Down Corporate and Union Campaign Spending Limits and Blows a Hole in Effective Public Financing Plans. That post began: "Today's Supreme Court opinion in FEC v. Davis nominally deals with a relatively tangential portion of the McCain-Feingold law; but the 5-4 decision has much broader implications, laying the groundwork for striking down limits on spending by corporations and unions."

Citizens United, to be decided by the Supreme Court on Monday, has the potential (but not necessity) of being a blockbuster case that strikes down corporate spending limits in candidate elections, overruling Austin v. Chamber of Commerce. Justices Kennedy, Scalia and Thomas are already on record as favoring this result. As I've written, for Chief Justice Roberts and Justice Alito, it appears to just be a matter of time.

I was reminded of this yesterday when I was preparing excerpts from Davis for the 2009 Lowenstein, Hasen, and Tokaji casebook supplement. Davis came out when the casebook was already in page proofs, so we were only able to add small bits about the case. This was an opinion written by Justice Alito and signed by him, CJ Roberts, and Kennedy, Scalia, and Thomas. Note the favorable citation to Justice Kennedy's dissent in Austin. In most ways Alito and Roberts are already there on the question of Austin's overruling. It is just a question whether "judicial minimalism"/blinking/statemanship strikes again.

Here is what I've prepared for the Supplement:

ADD THE FOLLOWING TO THE END OF NOTE 4 ON PAGE 873:

The Casebook at page 795 briefly describes the facts of Davis. Here is a relevant excerpt from the majority opinion taking issue with the equality-like rationale offered by the government for the provision of BCRA increasing candidate contribution limits when candidates face self-financed opponents:

The Government maintains that s 319(a)'s asymmetrical limits are justified because they "level electoral opportunities for candidates of different personal wealth." "Congress enacted Section 319," the Government writes, "to reduce the natural advantage that wealthy individuals possess in campaigns for federal office." (emphasis added). Our prior decisions, however, provide no support for the proposition that this is a legitimate government objective. See Shrink Missouri (THOMAS, J., dissenting) ("'[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances'" (quoting NCPAC); Randall (THOMAS, J., concurring in judgment) (noting "the interests the Court has recognized as compelling, i.e., the prevention of corruption or the appearance thereof"). On the contrary, in Buckley we held that "[t]he interest in equalizing the financial resources of candidates" did not provide a "justification for restricting" candidates' overall campaign expenditures, particularly where equalization "might serve . . . to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign." We have similarly held that the interest "in equalizing the relative ability of individuals and groups to influence the outcome of elections" cannot support a cap on expenditures for "express advocacy of the election or defeat of candidates," as "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." see also McConnell (noting, in assessing standing, that there is no legal right to have the same resources to influence the electoral process). Cf. Austin (KENNEDY, J., dissenting) (rejecting as "antithetical to the First Amendment" "the notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections").

The argument that a candidate's speech may be restricted in order to "level electoral opportunities" has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office. See Bellotti ("[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments" and "may consider, in making their judgment, the source and credibility of the advocate"). Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, s 2, and it is a dangerous business for Congress to use the election laws to influence the voters' choices. See Bellotti (The "[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves").

Davis, 128 S.Ct. at 2773-74.

Justice Stevens, speaking for the four dissenters, wrote the following in response:

[W]e have long recognized the strength of an independent governmental interest in reducing both the influence of wealth on the outcomes of elections, and the appearance that wealth alone dictates those results. In case after case, we have held that statutes designed to protect against the undue influence of aggregations of wealth on the political process-where such statutes are responsive to the identified evil-do not contravene the First Amendment. See, e.g., Austin (upholding statute designed to combat "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public''s support for the corporation's political ideas"); MCFL ("Th[e] concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas. ...Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace"); cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) (upholding constitutionality of several components of the FCC’s "fair coverage" requirements, and explaining that "[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market").

Although the focus of our cases has been on aggregations of corporate rather than individual wealth, there is no reason that their logic--specifically, their concerns about the corrosive and distorting effects of wealth on our political process--is not equally applicable in the context of individual wealth. For, as we explained in McConnell, "Congress' historical concern with the 'political potentialities of wealth' and their 'untoward consequences for the democratic process...has long reached beyond corporate money."

Minimizing the effect of concentrated wealth on our political process, and the concomitant interest in addressing the dangers that attend the perception that political power can be purchased, are, therefore, sufficiently weighty objectives to justify significant congressional action. And, not only was Congress motivated by proper and weighty goals in crafting the Millionaire's Amendment, the details of the scheme it devised are genuinely responsive to the problems it identified. The statute's "Opposition Personal Funds Amount" formula permits a self-funding candidate to spend as much money as he wishes, while taking into account fundraising by the relevant campaigns; it thereby ensures that a candidate who happens to enjoy a significant fundraising advantage against a self-funding opponent does not reap a windfall as a result of the enhanced contribution limits. Rather, the self-funder's opponent may avail himself of the enhanced contribution limits only until parity is achieved, at which point he becomes again ineligible for contributions above the normal maximum.

It seems uncontroversial that "there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reason-giving on the other." Sunstein, Political Equality and Unintended Consequences, 94 Colum. L.Rev. 1390 (1994). In light of that clear truth, Congress' carefully crafted attempt to reduce the distinct advantages enjoyed by wealthy candidates for congressional office does not offend the First Amendment.

Davis, 128 S.Ct. at 2780-82.

We'll see on Monday.

Posted by Rick Hasen at June 26, 2009 09:22 AM