June 07, 2010

"Citizens United and the Illusion of Coherence"

I have posted this draft on SSRN. It is very much a first draft. I'll be presenting this at an APSA panel at the end of August and submitting to law reviews. So I still have plenty of time to incorporate comments. Here is the abstract:

    The self-congratulatory tone of the majority and concurring opinions in last term's controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority's view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions and to a broader set of election-related television and radio broadcasts. The majority saw itself as returning the Court to the fountainhead of this jurisprudence, the Court's 1976 opinion in Buckley v. Valeo.

    Citizens United indisputably harmonized campaign finance law on the question of the constitutionality of spending limits on corporations, even if its view of Austin as an "outlier" remains contested. But the Court in doing so amplified and solidified other significant, incoherent aspects of the Court's campaign finance jurisprudence. In this regard, consider the Court's declaration as an empirical matter--apparently for all types of elections and all types of spenders--that "independent expenditures . . . do not give rise to corruption or the appearance of corruption." Partly to justify this unsupported empirical claim, the Court embraced a narrow, "crabbed" view of corruption, contrary to other precedent including Buckley, that seemed to include little more than quid pro quos already illegal under federal bribery law, and that excluded "ingratiation and access" as forms of corruption. Consider also the Court declaration that in the campaign finance context neither the identity of the speaker nor any distortion of the political process caused by disproportionate spending can ever be the basis to limit someone's right to spend in elections.

    Soon enough, this language will force the Court into a corner, where it will either have to adopt a view that no limits on money in politics are ever constitutional or, more likely, vote to sustain some limits on money in politics through doctrinal incoherence. For example, it is unclear how the Court applying the broad pronouncements of Citizens United could possibly sustain spending limits against foreign nationals, who might like to flood U.S. election campaigns with money to influence electoral or legislative outcomes. Indeed, if the Court took its own language seriously about the meaning of corruption in a future case, even normal limits on contributions to candidates would be in serious danger of being struck down as violating the First Amendment.

    We need not wait for future cases to see this incoherence, because the Court’s new doctrine is already incoherent. The Citizens United majority could not satisfactorily explain how independent expenditures, which apparently cannot corrupt, were so corruptive, apparently corruptive, or distorting of a judicial election in the 2009 case Caperton v. Massey that the Court mandated the recusal of a state supreme court chief justice hearing a case involving a corporate executive who had made large independent expenditures supporting the chief justice's election. The Citizen United majority is not in deed treating all elections and speakers equally, even if it is in word.

    The Court's present and future incoherence in its campaign finance jurisprudence reveals a broader point: the Court's approach to jurisprudential questions may be tempered by a political sensibility. Just as the Court before Citizens United treated corporations and labor unions as subject to identical campaign finance regulation despite the clear inapplicability of the Austin rationale to labor unions, it is likely to treat foreigners and American citizens wishing to make campaign expenditures differently despite the uniformity of the rhetoric of free speech rights in Citizens United. This analysis suggests that the Court's jurisprudence, while certainly shifting in a deregulatory direction, may not move to a position of complete deregulation unless the Court is willing to endure continued public backlash. At least in the campaign finance context, it may be that Court doctrine moves within a range, bounded at its extremes by public opinion.

    Part I of this Article situates Citizens United in the campaign finance jurisprudence that preceded it and describes in detail the key opinions in the case. Part II explains how the Court's analysis in Citizens United is likely to lead to new incoherence in the Court's campaign finance jurisprudence, because it is unlikely that the Court will follow the new case to its extreme, for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates. Part III suggests that incoherence is likely to be an enduring feature of the Court's campaign finance jurisprudence, because consistent application of a coherent approach could well be politically unpalatable for majority of the Justices on the Court. It also considers the challenge such incoherence poses for lawyers arguing campaign finance cases in the Supreme Court and lower courts.

Posted by Rick Hasen at June 7, 2010 08:41 AM