There aren't too many Supreme Court cases that can be called "truly momentous" even before they are decided. But when the Court asked to rehear the case of Citizens United v. Federal Election Commission in a rare preterm session this fall, it became clear that, even though the case itself is minor, the Court might use it as the opportunity to make a big change in the law regarding money in politics. But as week after week passes without a decision, the community of campaign-finance reformers becomes ever more anxious that some of their most basic assumptions about what's constitutional and what isn't will be wiped out.
The case involves a video called Hillary: The Movie produced last year by the right-wing attack group Citizens United and broadcast through on-demand cable channels around the time of the Democratic primaries. The Federal Election Commission found the film violated the provisions of the Bipartisan Campaign Finance Reform Act (BCRA, aka McCain-Feingold) that require communications that seem intended to influence an election to be paid for with hard money -- that is, limited contributions from individuals or political action committees. But when it asked to hear the case again, with Justice Sonia Sotomayor sitting in David Souter's seat, the Court indicated that it might go much further than the case at hand.
Broadly speaking, there are three possible outcomes of the case. The first, and the one that is almost certainly legally correct, would be a ruling on statutory grounds: Hillary: The Movie never should have fallen under federal campaign-finance regulation in the first place. Because it was distributed over on-demand cable television, viewership was determined by choice. There is also no reason to think that it actually reached a substantial number of voters in the impending Democratic primary, and more important, it wasn't intended to influence an undecided voter, since it was a right-wing film targeted to right-wing voters. But as the most sensible of the amicus briefs, that of a group of former leaders of the American Civil Liberties Union, points out, "neither party appears interested in seriously considering whether Hillary actually falls within the ambit of BCRA."
If the Court saw the case as that simple, it wouldn't have gone to all the trouble of rehearing it and opening up the constitutional issues. Still, it's possible that, as in last spring's anticlimactic decision in a voting-rights case, if it can't find a majority for any broader ruling, the Court might settle on the narrow, statutory decision, which would also be the correct one.
More likely, though, is that the Court would finally scrap the provisions of the Bipartisan Campaign Reform Act (McCain-Feingold) that regulate independent ads in the period just before an election and require them to be paid for with hard money. The Court upheld the constitutionally dubious provision (which really does limit speech) in the 2003 decision, McConnell v. FEC, but in a 2007 case, Wisconsin Right to Life v. FEC, the Court almost reversed itself, but not completely, allowing ads that mentioned candidates but didn't explicitly advocate voting for or against them.
In calling for a rehearing, the Court raised a third and more far-reaching possibility, that it might use this bad, irrelevant case to throw out one of the cornerstones of campaign-finance regulation -- that corporations can be subject to stricter regulations than individuals. That corporations are barred from direct support of candidates goes back to the Tillman Act of 1907, and a 1990 case, Austin v. Michigan Chamber of Commerce held the prohibition extended to independent spending by corporations. If the Court were to overturn Austin, it would give corporations the same right to advocate for the election or defeat of candidates, independently, that individuals have. And thus it raises the question of whether corporations -- despite being creations of the state and given privileges such as limited liability -- have all the rights of people.
To most campaign-reform advocates this is a self-evident disaster. The New York Times warned in a July 5, 2009, editorial that "auto companies that receive multibillion-dollar bailouts could spend vast sums to re-elect the same officials who hand them the money. If Exxon Mobil or Wal-Mart wants something from a member of Congress, it could threaten to spend as much as it takes to defeat him or her in the next election." Stephen Colbert, in character, said, "Corporations have free speech, but they can't speak like you and me. They don't have mouths or hands. Instead ... they must speak in the only way they can: through billions and billions of dollars." Legal scholar Douglas Kendall put it more succinctly in the article in which he called the case momentous: "President Palin, courtesy of Chevron."
But, let's not be willfully naïve. Corporations can and already do spend millions to influence policies that affect them, whether through lobbying or public communications. If they want to influence elections, they can do so through political action committees or through independent spending that doesn't run afoul of BCRA. Consider that here we are in the middle of a period in which health reform, financial regulatory reform, and climate-change legislation are all either blocked or dramatically compromised by corporate spending and influence, in all its forms. Does anyone really believe that without the emaciated remnants of campaign-finance law it would be that much worse?
Further, not all corporations are Exxon-Mobil: The corporation at issue in Citizens United is actually Citizens United itself, a nonprofit corporation. The American Prospect is a corporation, so are the Democratic National Committee, the ACLU, Habitat for Humanity, ACORN, and MoveOn.org. Incorporation is the way we organize in this country, and while some might be organized for the purpose of maximizing profit under limited liability, others are organized for the very purpose of political speech. There has always been a tension in campaign-finance reform about whether we are trying to limit money or limit organization, and under current law, the wealthiest individuals are free to spend while organized groups are limited.
Whatever the decision, Citizens United reveals the need for a new approach to campaign finance, one that’s less focused on trying to keep money and corporate influence out and more focused on making it easier for candidates to run for office, and occasionally win, without corporate money. If the Court throws out either McConnell or Austin, it will obviously be time for a fresh approach, although campaign-finance traditionalists will surely come forth with schemes to recraft BCRA in some awkward way to work around the ruling.
But even if the Court takes the narrow and correct path and simply rules that BCRA should never have applied to an on-demand cable show like Hillary: The Movie in the first place, the limits of traditional reform will be revealed. After all, the world of political communications is now full of things like on-demand cable, Internet videos, blogs, e-mail blasts, or, as GOP chair Michael Steele put it, campaigns "doing the Twitter thing, doing the Facebook thing." The provisions in BCRA in question were created to deal with the particular circumstances of 1996 and 1998, when voters were bombarded with broadcast television ads purporting to talk about issues but really intended to influence the election. Get those ads under control, the theory went, and limits on soft money can really be effective. More than a decade later, broadcast television is a smaller and smaller portion of political communication, and chasing after all the different ways in which corporate money might influence voters is totally unworkable.
The different approach is reflected in The Fair Elections Now Act, introduced by Sen. Dick Durbin and Rep. John Larson earlier this year. Rather than focusing on limits, the act would create a real public financing system for congressional candidates, one that gives candidates an incentive to seek small contributions by providing a four-to-one match for the general election, similar to New York City's very successful system. This shift -- from a focus on limiting money to one of creating opportunity for candidates and encouraging small donors, has been long overdue, and if Citizens United finally forces reformers to move on, that's not the worst thing that could happen.
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