As Citizens United marks its second anniversary, most of the commentary has focused on the advanced First Amendment “personhood” recognized for corporations–on the conferral of “free speech” rights permitting them to directly intervene in elections. And political practice has quickly followed changed constitutional theory: Citizens United may not have created the SuperPACs, but it has freed them to solicit and accept corporate money. Certainly in these respects, the case merits the intense attention it has received. In time, however, the depth of the Court’s skepticism toward federal campaign finance law, the post-Watergate era reforms dating back to the l970’s, may come to define this case as much as the solicitude shown toward the corporate political actor.
The Citizens United majority declares that the reform laws enacted forty years ago have become dangerously complex: pages upon pages of law in the form of “568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions”. Citizens United v. FEC, 130 S. Ct. 876, 895 (2010). The Court proclaims that ordinary citizens cannot be expected to make sense of all this legal material: “the First Amendment does not permit laws that force speakers to retain a campaign finance attorney. . . .” Id. at 889. The standing danger of “prolix laws” is that they “chill speech for the same reason that vague laws chill speech”. Id.
That there is an agency, the Federal Election Commission (FEC), to provide guidance is no comfort to the Court: the requirement that its assistance be elicited is a separate ground of offense. According to the Court’s majority, the FEC is a “censor”; indeed its “‘business is to censor’”. Id. at 896 (citing Freedman v. Maryland, 380 U.S. 51, 57-58 (1965)). And it has vast opportunity to oversee speech, “given the complexity of the regulations and the deference courts show to administrative determinations”, because any speaker who wishes to avoid criminal liability or legal costs “must” ask the FEC for advice. Id. at 895. The Court finds that the FEC has been given “power analogous to licensing laws implemented in 16th and 17th century England”, and, put to the trouble of seeking the agency’s blessing, a speaker may choose to avoid political activity altogether. Id. at 896. Either way, the volunteer, the candidate, the political committee or the citizens group may be deterred from engagement in politics: facing, on the one hand, restrictions imposed by the agency, or, on the other, the mere prospect of those restrictions, which might discourage the attempt in the first place.
In laying out these arguments, the Court is explaining why it chose to review, head-on, the momentous constitutional question of corporate free speech rights rather than find, on the unique facts of this case–a movie, seen in video-on-demand, in theatres or in DVD format–a more limited route to a resolution. A clear line must be drawn, the majority states, in lieu of more complex rules and standards that might distinguish between profit or nonprofit corporations, or between different media of communication, or between different types of messages that would have to be closely scrutinized for electoral content. In reaching this conclusion, the Court’s majority seems bent on making a larger point about the suffocating complexities of the law and their implication for the free speech rights of everybody–everybody, that is, who would have to navigate the regulatory terrain in order to conduct any form of federal electoral activity.
This is a point on which the Court sharply steps aside from what it had to say, only a few years ago, in McConnell v. FEC, when the Court stressed, in the face of the complexities of McCain-Feingold, the advantages of access to the FEC’s advisory support. 540 U.S. 93 (2003). McCain-Feingold’s rules were, for certain types of activities, complex, and for the most part Americans of “ordinary intelligence” could figure them out. McConnell at 170 n. 64 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972)). But if they could not, the FEC was available to “clarify” the rule by issuing Advisory Opinions and thereby “remove any doubt”. Id. (quoting Civil Service Comm’n v. Letter Carriers, 413 U.S. 548 (1973)). The Government was there to help—more the helpmate than the censor, focused on clearing things up rather than issuing licenses akin to those issued in England some centuries ago.
The Court’s complaint about complexity is also a sharp rebuke to the McConnell Court’s emphasis on Congress’s constitutional authority, through additional regulation, to stop “circumvention”. See, e.g., McConnell at 137 (noting that the Buckley framework “provides Congress with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process.”). The Court understood circumvention to be achieved through loopholes that require new rules to plug them; it comes about, too, when rules are insufficient in scope or detail to fulfill the core statutory mandate in changed circumstances and in the face of changed campaign finance practices. The McConnell Court located much of Congress’ authority to refine and expand legislative controls on campaign finance in order to counter this circumvention. Reviewing the course of American legal history, it found that reform statutes quickly inspire circumvention, and it pictured modern campaign finance law as built, rule-by-rule, by the requirement to meet the challenge of those devising ways around the law’s limits. See McConnell at 115-19 (discussing initial Congressional attempts to limit the corrupting influence of campaign donations through the Federal Election Campaign Act (FECA) and Congress’s quick adjustments, by amendment to the Act in 1974) and 129-32 (discussing a Senate Committee investigation report detailing the use of soft money to circumvent campaign finance laws). For this reason, the McConnell Court relied upon on an empirical inquiry into contemporary campaign practice–into the novel channels, documented by “reams of disquieting evidence contained in the record”, McConnell at 153, through which money was steered around regulatory restrictions.
McConnell’s reform history– and its view of the regulatory imperative associated with it– gave way in Citizens United to a very different account of the heavy hand of “prolix” and indecipherable legislative command and of “censorship” passed off as constructive guidance. Once the necessary answer to circumvention, the growth in the volume and complexity of rules is now seen by the Court as a potential threat to constitutional rights. The more ingenious or consequential the circumvention, the more complex, almost necessarily, is the regulatory response; but with this complexity comes the peril that fresh rules will invite constitutional complaint and justify critical judicial attention. Consider, in that connection, Wisconsin Right to Life, where the Court carved out a zone of protection for corporate grassroots lobbying before elections, reserving regulation for spending that was the “functional equivalent of express advocacy”. 551 U.S. 449, 465 (2007). The difference required more explanation than the Court could provide, and the regulators dutifully went about their business of crafting guidance, only to discover by the time of Citizens United that, in the Supreme Court’s view, their “two-part, 11-factor balancing test” had made it all too complicated. Citizens United at 895.
These are the ways beyond merely declaring unprecedented corporate rights that the Court in Citizens United expresses itself on the l970’s reforms. Enacted during a period when the administrative state was in full flower, political reform was charted for a course similar to that of other federal regulatory enterprises. Campaign finance law would become a field of administrative law; the FEC would supply the administration. Adjustments for the political character of the field were made–no one party could achieve majority control of the agency– but on the whole, the model was a familiar one. The Court in Citizens United suggests, strongly, its rejection of that model.
And in doing so, the Court is adopting a critique strongly registered over the decades both before and after the enactment of McCain-Feingold. Professor Brad Smith, both an academic and former FEC Commissioner, is among those who have objected that the chase after “circumvention” has “led to laws more restrictive of basic rights, more convoluted, and more detached from Madison’s insights (about the risk to liberty from the attempt to control special interests).” Bradley A Smith, The Myth of Campaign Finance Reform, 2 National Affairs 75, 90 (2010). And Smith was writing about campaign finance reform generally, not the complexities of the 2002 McCain-Feingold amendments, as he also did in his book-length critique of the post-Watergate regulatory regime, Unfree Speech. Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance Reform (2001).
For those evaluating the future of an effective federal-level regulatory program, the Court has now given them more than enough reason for pause in this largely overlooked legacy of Citizens United. Now, considering what to expect or where to invest their energies, many naturally look to the states, and particularly to those that have experimented with public financing statutes. State-level experimentation is one alternative to the stalemate produced by the conflicts over federal regulation; and in public financing schemes, resting as they do on voluntary candidate participation, the emphasis shifts from command-and-control regulatory programs to “level-up” systems through which public resources are made available in place of most private funding and the grinding demands of private fundraising.
But if Citizens United dulls the tools available for the standard-issue regulatory model of the l970’s, another Court decision a year later, Arizona Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) thins out the state legislative options for public financing schemes. Arizona had provided for participating candidates to subscribe to a spending limit but to receive additional “matching” funds when facing unlimited PAC or other independent expenditures, or spending over a specific threshold by their opponents, including self-financed opponents. Without this support, the state contended, candidates would have diminished incentive to elect public funds: they would fear being swamped by the opposition’s resources. But the Bennett majority, the same as the Citizens United majority, broadly construed the rights, in this context, of independent groups and of privately funded candidates: the state would also have to forego any consideration of their spending in determining what publicly candidates could receive. Arizona would have to stick to basics: “In the face of [Arizona’s] ascetic contribution limits, strict disclosure requirements, and the general availability of public funding, it is hard to imagine what marginal corruption deterrence could be generated by the matching fund provision.” Bennett at 2827.
So the Citizens United majority, in that case and in Bennett, has both clouded the future of the Watergate reforms and narrowed the path through the states to public financing alternatives. Citizens United can be understood in this perspective to be about more than “corporate speech” rights.