In a poll released in early February, 56 percent of voters said they had paid some or a great deal of attention to the Supreme Court's Jan. 21 decision in the case Citizens United v. Federal Election Commission. If true, this complex election-law case would rank among the handful of decisions -- Brown v. Board, Roe v. Wade, Bush v. Gore -- of which there is broad public awareness. President Barack Obama's charge that the Court had "reversed a century of law that I believe will open the floodgates for special interests" in his State of the Union address gave the story a little drama, especially when Justice Samuel Alito was spotted expressing vigorous objection.
Obama was overstating the case. By itself, the decision in Citizens United, which overturned a couple of already-teetering precedents that modestly limited corporations from spending independently on behalf of candidates for federal office, won't open any "floodgates," mostly because there weren't many dams to begin with. Corporations already have ample opportunity to influence federal elections and legislation, and in many state and local races, they face no limits at all. Most corporations, especially publicly held or consumer companies, don't do all they can, in large part because they prefer to avoid high-profile controversy. And targeting unfriendly legislators for defeat, as many have predicted corporations will do, is unlikely. It's hard to take out an incumbent, and to try and fail is dangerous. (The strongest counterargument is that Citizens United, and the publicity around it, will change assumptions and cultural norms about what corporations can do, unleashing spending that was previously legal but seemed suspect.)
Nor is it entirely crazy to say that corporations are presumed to have free-speech rights, albeit rights that can be regulated for legitimate purposes. After all, like Citizens United (a right-wing hit group that ran a cable TV video attacking Hillary Clinton) itself, plenty of corporations are organized for the very purpose of political speech. This magazine is a corporation, so is MoveOn.org. Incorporation is the only way two or more people can organize to do anything in this country.
That's not to say that Citizens United is a good decision. The Court should never have taken the case, and it only did so in order to reverse old precedents and create uncertainty about all campaign regulation. The majority opinion redefined "corruption," which in both law and reality had been a fairly broad concept, as limited to specific quid pro quo trades of campaign money for votes, a change entirely unsupported by evidence about how corruption works but one that potentially undermines existing limits on political contributions. And the Court's insistence that the law can never limit speech by distinguishing among categories of speakers (in this case, corporations) is belied by the many situations in which the law does exactly that -- federal employees are categorically limited in their political speech under the Hatch Act, and students' speech can also be limited.
The really significant effect of Citizens United is in finally closing off the approach to regulating money in politics that has been dominant since Watergate: an approach based on limits and then on closing loopholes on those limits. The limits-and-loophole-closing approach was already exhausted, but the Court has now drawn a line under it. There should be no illusions that a few legislative patches can make the limits created by the McCain-Feingold law in 2002 work.
But where one door closes, another opens. In this case, that other door is an approach to campaign-finance reform that is not based on limiting money (or speech) but on enhancing it by using public financing to boost the role of small donors and help candidates reach the threshold where they can be heard. Such systems in New York City, Minnesota, Arizona, Maine, and Connecticut are not only constitutionally sound, they are effective at moderating the influence of corporate and lobbyist money. Above all, they have proved popular and politically resilient.
A group of political scientists who helped design the limits on independent spending in McCain-Feingold recently unveiled a proposal built on these new approaches. The federal legislation that reflects the lessons of the successful state programs, the Fair Elections Now Act, has 133 co-sponsors in the House, including three Republicans, and newly elected Republican Sen. Scott Brown boasted in his post-election press conference of his support for a similar initiative in Massachusetts. Citizens United may bring a new day in the effort to separate economic inequality from democracy, but it is not necessarily a dark day.
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