An Absolute Must-Read for those following Citizens United: the Untold Drafting History of Austin

I just came across Beth Garrett's article (52 How. L.J. 655 (2009)) in Howard Law Journal's symposium on the life and jurisprudence of Justice Marshall. Beth's article begins on p. 163 of the pdf and runs through p. 198. There has been a great deal of debate on this blog, on the election law listserv, and elsewhere over the "distortion" rationale offered for corporate spending limits in Austin v. Michigan Chamber of Commerce. Briefly, I and many others read it as an equality rationale, but SG Kagan specifically distanced herself from this rationale at the Citizens United oral argument, and tried to recast the argument as a shareholder protection rationale or something else.

Beth was Justice Marshall's clerk when he wrote Austin, and though I have pressed her for years for details about Austin's drafting, she has been pretty tight lipped. Until now. Footnote 70 of the article reads: ""I was the clerk with primary responsibility to work with Justice Marshall on this opinion. This description of the negotiations about the various drafts is based on my recollections and personal notes, as well as on documents available from the Marshall papers at the Library of Congress." The drafting history of Austin runs from pdf 177 to 186 in this draft. Here are just a few highlights:

As I will discuss below, and as others have pointed out, this idea of corruption caused by the potentially "corrosive" and "distorting" effects of campaign expenditures of corporations from their general treasury funds is hard to understand sensibly as anything other than an equality argument. However, the Justice had no choice but to draft the opinion as he did, even if he might have been comfortable with more openly embracing equality of access as the compelling interest, for two related reasons. Before describing those reasons, let me be clear: I am not claiming that the Justice considered, and then rejected, writing an opinion finding the Michigan law constitutional because it furthered the legitimate democratic interest in equality of opportunity to participate in the political process, regardless of a person's economic resources.70 Rather, I am arguing that the Justice would not have been disturbed by the observation that the corruption rationale in Austin was merely the wolf of equality dressed in sheep's clothing. Moreover, had Marshall thought that Austin might someday lead the Court to embrace an equality of opportunity rationale explicitly--a development that has yet to occur and seems less likely with the current Court--he would likely have approved....
While assisting the Justice with this opinion and others from that term, I grew to admire Marshall's political skill and ability to make pragmatic changes in opinions to preserve his majority. Austin was an example of this; Justice Marshall would have viewed it as irresponsible to write an opinion that boldly staked out a rationale based on equality that no one other than perhaps Justice White would have even considered joining. But, as often occurs when compromise is necessary to achieve a result, the rationale of the opinion which ultimately garnered six votes is unsatisfactory and at times incoherent. To understand why this is so, it is necessary to probe the reasoning supporting the political corruption that Marshall's opinion introduced into the campaign finance jurisprudence.

Marshall's majority opinion identified a "different type of corruption" from Buckley's quid pro quo corruption: "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."90 It is interesting -- and not coincidental91 -- that "corrosive" and "distorting" were adjectives used several times by Judge J. Skelly Wright in his often-cited article Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?92 Wright's argument was unabashedly egalitarian. ...The Austin opinion does not cite Wright and eschews the enhancement theory also rejected in Buckley, but the adjectives used throughout Marshall's opinion draw from Wright's article and seem best suited to describe reform efforts designed to provide equality of access to the political arena for all citizens, regardless of their wealth. Thus, Marshall appropriated the language used to describe an egalitarian justification for campaign finance regulation, but he expressed that state interest in the acceptable corruption terminology....
In short, in Austin Marshall valiantly tried to articulate a state interest supporting the regulation of corporate expenditures in candidate elections that was somewhat consistent with the traditional quid pro quo corruption accepted by a majority of the Court. Close examination of the Austin corruption rationale demonstrates that it is not
persuasive on its own terms, but it is coherent if understood as an argument supporting regulation to better ensure equality of participation in campaigns for all Americans, no matter what their economic resources. Marshall masked this equality principle in order to maintain his majority, but it clearly animated his decision, and it flowed naturally from his conviction that the preeminent constitutional value was equality of opportunity.

Read the whole thing. Thank you Beth.

Posted by Rick Hasen at September 16, 2009 01:40 PM