The Real Problem with <i>Citizens United</i>

Yesterday the Supreme Court struck down the federal ban on corporate independent expenditures in Citizens United v. FEC. Before Citizens United, corporations were not allowed to spend money from their general treasuries to call for the election or defeat of federal candidates close to Election Day, even if they did so without consulting with the candidate. In striking down the federal ban, the Supreme Court overruled two of its decisions: Austin v. Michigan Chamber of Commerce, decided in 1990, and McConnell v. FEC, decided less than 7 years ago.

The decision has been met with howls of protest from reformers: The Supreme Court overruled its own precedent! A century-long tradition of regulation is in jeopardy! Corporations will flood the airwaves and further corrupt our already corrupt political process! It's "a disaster for the American people," says Fred Wertheimer of the campaign finance reform organization Democracy 21.

It's not surprising that reformers are outraged. Austin has long been the darling of reformers; it's as close as the Court has ever come to saying Congress can regulate campaign finance to promote "equality." Reformers have long argued that reform should level the playing field between the monied and the everyday citizen. The Court, however, has generally disagreed. It has repeatedly rejected the equality rationale and, with the exception of Austin, insisted that preventing corruption is the only legitimate grounds for regulation.

Still, as a practical matter, the opinion is just one more step in the direction the Court was already heading. As Nate Persily, director of the Center for Law and Politics at Columbia points out, earlier cases had already substantially limited Congress's power to restrict independent corporate expenditures; Citizens United was just the last nail in the coffin. The real damage to the cause of reform came earlier, with cases that made less of a splash but probably mattered more. An earlier case, for instance, licensed corporations to run independent ads attacking or supporting candidates provided they stopped just short of telling us how to vote. As a practical matter, there's not much distance between an ad that tells voters to "call Senator X and tell her to stop being mean to puppies" and one that tells voters to "vote against Senator X." Moreover, whatever the reform community thought of Austin, Supreme Court observers have long thought Austin was a goner. Even the Solicitor General was unwilling to defend the decision's equality rationale.

The truth is that the most important line in the decision was not the one overruling Austin. It was this one: "ingratiation and access . . . are not corruption." For many years, the Court had gradually expanded the corruption rationale to extend beyond quid pro quo corruption (donor dollars for legislative votes). It had licensed Congress to regulate even when the threat was simply that large donors had better access to politicians or that politicians had become "too compliant with the[ir] wishes." Indeed, at times the Court went so far as to say that even the mere appearance of "undue influence" or the public's "cynical assumption that large donors call the tune" was enough to justify regulation. "Ingratiation and access," in other words, were corruption as far as the Court was concerned. Justice Kennedy didn't say that the Court was overruling these cases. But that's just what it did.

If the Court rigidly insists that Congress can regulate only to prevent quid-pro-corruption, narrowly defined, then Citizens United has implications that extend well beyond what corporations can do. Justice Kennedy's own opinion even hints at the possibility, as he notes that the evidence supporting the "soft money" limits – which apply across the board -- rests on evidence about the connection between money and political access. While Justice Kennedy backed off from saying anything definitive, we may find that it was the Court's discussion of corruption, not corporations, that matters most in the long run.

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