January 22, 2010
Ned Foley: Citizens United: A Long Term Perspective
I asked some legal scholars specializing in campaign finance law to comment on Citizens United over the next few days. Here is the first post, from Ned Foley of Ohio State. His entry is long, so here is a synopsis. Click on the link below to read the full post.
A quarter-century from now, when we celebrate the bicentennial of de Tocqueville's Democracy in America, what will we think of Citizens United? The majority opinion was written to be revered, in the way that New York Times v. Sullivan or The Pentagon Papers Case has been. But perhaps, instead, it may be seen as a stain on the fabric of democracy, one sending the country into another era of sullied politics like the one before the Progressive Era took hold. The 90-page dissent is certainly written with this sort of prognosis in mind.
Or, by 2035, Citizens United may no longer be good law. After all, the doctrine of stare decisis that replaced Austin and McConnell with Citizens United just as easily could revert back to Austin and McConnell within the next twenty-five years. If you think such flipping-and-flopping is too unseemly for the Supreme Court, you've forgotten your Tenth Amendment jurisprudence: National League of Cities (1976) replacing Maryland v. Wirtz (1968), only to be replaced itself by Garcia (1985), which was then superseded by New York v. United States (1992) and Printz (1997). It took twenty years to undo Austin; McConnell lasted barely more than six; but within the decade or two we might have a new decision either explicitly or implicitly eviscerating the heart of Citizens United, whatever that decision might say about the Court's fidelity to the objectivity of constitutional law.
But fans of Citizens United also should not pretend that the era of inevitable line-drawing is over, now that they have their definitive overruling of Austin. In fact, the majority opinion in Citizens United itself told us that it is not. Left for another day, we are told, is the potential problem of campaign spending by foreign-owned corporations, as well as foreign governments themselves. Although the Court today did not answer the question (because it had no occasion to do so), one must doubt very much that it would invalidate a carefully drawn statute designed to prevent foreign governments from spending money to influence U.S. elections. Yet if that is true, the line-drawing task begins. What about foreign corporations under the control of foreign governments?
Citizens United confronted a statute that banned independent electioneering by all corporations. Even if one would have sided with Justice Stevens in dissent, one must acknowledge the point that much spending by many corporations would not corrupt members of Congress or otherwise improperly undermine the electorate’s ability to choose among competing candidates. Citizens United speaks in absolutist terms, but it faced an absolutist statute. It does not, and cannot, tell us what the Court would do if it were faced with a focused statute, targeted at curtailing corporate spending that is truly pernicious, and backed by evidence of its particular perniciousness.
The evil to be avoided is industries that require extensive government regulation, because of the risk to public safety or well-being if they operate without public supervision, being able to purchase politicians by bankrolling their campaigns (and thereby causing the politicians to deregulate regardless of the public interest). If it turns out that these regulated corporations can successfully do that by spending large sums independently of the politician’s own campaign itself, and this corporate control of legislative decisions can be shown, then a statute targeted at the specific industries and setting an appropriate limit on the amount of spending by businesses in these industries (rather than banning any such spending altogether) might stand a chance of success even after Citizens United.
The majority in Citizens United, even under its narrow conception of corruption, acknowledged:
There is ambiguity and some potential wiggle-room here. A $1 million ceiling on the amount that the operator of a nuclear reactor can spend to support a Senate candidate, adopted in the wake of efforts by the nuclear reactor industry to lessen safety standards, is not an “outright ban” nor disproportional to the valid concern. "Asymmetrical" is the opposite of "narrow tailoring," and thus Citizens United accepts the notion that Congress can take appropriately measured responses.
Thus, Congress needs to go about carefully and prudently testing the limits of Citizens United. It should start with the most compelling categories of industries, the ones where the private sector is essentially undertaking a government function because the government has determined that private sector--as long as it operates under strict supervision--can perform the task more effectively than the government itself. In this context, Congress can say it is concerned not only about the risk of its being corrupted by the regulated entities, but insofar as the regulated entities are acting as surrogates or agents of the government itself, Congress wishes to avoid having an instrumentality of government authority takes sides in a congressional campaign. Just as the Nuclear Regulatory Commission may not spend on behalf of a congressional candidate, so too may not the operators of nuclear reactors if they are performing the government’s function at the government’s behest.
If over the next twenty-five years, Congress adopts a series of laws that are narrowly focused and incremental in this way, then the landscape we are likely to encounter is one where Citizens United has been superseded as a practical matter by a series of decisions that define, perhaps somewhat erratically, what Congress can and cannot do in terms of limiting corporate spending to support and oppose candidates.
If this landscape indeed materializes, it will signify that the state of democracy in America is much healthier then that it is today. First, the focused constraints adopted by Congress--and accepted by the Court notwithstanding Citizens United--will be more democracy-enhancing than the law as its stands right now, with the Court's having invalidated the absolute ban on all corporate spending. The new landscape will come closer to rooting out what is truly pernicious, and yet at the same time leave untouched what is inconsequential or even beneficial. Narrow tailoring, over time, is potentially win-win.
Moreover, the very act of Congress engaging Citizens United in this way would be a healthy sign for our democracy. It would show Congress, on behalf of the public, taking responsibility for the quality of the democratic process and doing so in a fine-tuned, thoughtful manner. It would be, in essence, the democratic process improving itself.
But if Congress cannot engage Citizens United in this way, that would be a truly bad sign. It would likely indicate problems much bigger than Citizens United itself. As one observes Congress these days, one cannot help but wonder if the institution has become dysfunctional. The Broken Branch, to invoke the title of the book by Tom Mann and Norm Ornstein.
If a quarter-century from now, Congress remains dysfunctional, Citizens United will hardly have been the only cause. People will point to the filibuster, gerrymandering, and other factors that preceded Citizens United. And the bicentennial of de Toqueville's book will not be a happy occasion. Let us hope that that is not the situation in which we find ourselves.
Let us hope, instead, that we look back upon Citizens United as a spur which helped motivated Congress to engage in institutional self-improvement, which started a process that reduced the nation's democracy deficit.