Has The Supreme Court Declared Victory for the Moles?

In a recent piece in the Harvard Journal of Law & Public Policy, I say - as has at least one other commentator - that campaign finance reform is like a never ending game of Whack-A-Mole. Hit one and another one pops up. Stop money here and it flows over there.

On the day that the United States Supreme Court decided District of Columbia v. Heller, I wrote on my personal blog that Heller was not the most important decision of the day. I thought that honor belonged to FEC v. Davis, a decision that struck down the "millionaire's amendment" in the "McCain-Feingold" Bipartisan Campaign Finance Reform Act, a provision that raised contribution limits for candidates facing wealthy self-financed opponents. Davis made it clear that a majority of the Court rejected "equalization" as a rationale for the regulation of election related speech. It was my view that this would lead to the invalidation of the provision of "rescue funds" (addtional money provided in response to higher levels of spending by privately financed candidates or independent groups) in public financing schemes, a position which I developed more fully in the Harvard JLPP piece.

That shoe has not yet dropped, but a size 14 flowing from the same doctrinal position did drop this morning in Citizens United v. FEC.

For decades, Congress has prohibited the use of corporate and union treasury funds for campaign contributions. That prohibition was extended to campaign expenditures although the Court's decision in Buckley v. Valeo and subsequent cases made clear that this prohibition could only be applied to expenditures on communications that expressly called for the election or defeat of a named candidate. They could not be applied to issue advocacy, even if that advocacy was critical of a named candidate during an election campaign.

Congress tried to eliminate that type of unregulated issue advocacy in the McCain-Feingold Act by prohibited expenditures of corporate and union funds to finance certain communications that mentioned a candidate for federal office within a specified number of days of an election involving that candidate. After the Rehnquist Court rejected a facial challenge to that prohibition in McConnell v. FEC, the Roberts Court upheld an as-applied challenge in Wisconsin Right to Life v. FEC. In the latter case, a five justice majority essentially held that the ban could be applied only to communications that were not capable of being construed as issue advocacy. This was widely seen as a return to the pre-McCain-Feingold regime in which corporations and union funds could be used for ads that avoided the "magic words" of express advocacy. Seven justices (and almost every commentator) thought WRTL overruled McConnell. As I recall saying at our commemoration of Constitution Day in 2007, if Justices Stevens, Kennedy, Scalia, Souter, Thomas, Breyer and Ginsburg all agree on a proposition, it is a metaphysical certainty that the proposition is correct.

But the Court's then existing precedent, in particular, a case called Austin v. Michigan Chamber of Commerce had upheld the prohibition of the use of corporate and treasury funds to finance express advocacy.

Citizens United is a non-profit corporation that has produced and wished to disseminate a film called Hillary: The Movie. It did not expressly advocate the defeat of Hillary Clinton in her bid for the Presidency, but the district court found that the movie could not be interpreted as anything other than a message that Sen. Clinton was unfit for office, that the country would be a dangerous place if she were elected, and that viewers of the movie should vote against her. Citizens United wished to run broadcast ads promoting the movie and to make it available through video on demand, thus bringing it within the purview of McCain-Feingold.

Today, the Supreme Court overruled Austin. As in Davis, it flatly rejected the argument that the abridgement of corporate speech could be justified by a desire to equalize resources devoted to campaign advocacy. It adhered to the Court's longstanding distinction between contributions and contributions, but, in this case, abandoned the distinction between express and issue advocacy, finding that Hillary:The Movie was the functional equivalent of express advocacy. Nevertheless, the ban was unconstitutional.

I have not yet had a chance to fully study the opinion but a few things suggest themselves.

First, my argument against the constitutionality of rescue funds is bolstered and is likely to extend even to systems, like Wisconsin's recently enacted Impartial Justice Act, that limit rescue funds to "matching" or "counteracting" express advocacy.

Second, independent expenditures will become even more influential, further removing control of political discourse from candidates. This suggests that the project of campaign finance reform may be about to implode. Although constitutional doctrine permits it, it may make no sense to sharply curtail contributions while expenditures are virtually unregulated.

Third, the battle, it seems to me, shifts to disclosure. McCain-Feingold requires groups like Citizens United financing communications like Hillary:The Move to identify themselves and to disclose certain of their donors. The Court upheld that part of the law even insofar as it applies to issue advocacy. It held open, however, the possibility for as-applied challenges if a group could show a reasonable probability that disclosure would subject its donors to threats, harassment or reprisals from government officials or private parties. Citizens United made no such showing.

I'm sure I'll have more later.



Cross posted at the Marquette University Law School Faculty Blog.