I am developing my thinking on the subject of independent campaign spending by corporations, unions, wealthy individuals and other powerful entities. I write primarily to start a conversation about Senate Resolution 772. Note, click here for an overview of the current legal limits on campaign spending.
There are three measures pending before the Massachusetts Legislature that relate generally to independent campaign spending — spending to influence the outcome of elections by direct electioneering communications as opposed to giving to candidate committees. A common example of independent campaign spending would be an organization choosing, without consultation with a candidate, to mail to its members an endorsement of the candidate. An organization could go further and purchase advertisements supporting a candidate.
Let me say at the outset that I fully recognize the danger of special interest influence in the legislative process. That is why I personally refuse contributions from lobbyists and political action committees. I raise most of my campaign funds from the individuals in the district that I serve.
I believe that politicians themselves have the primary responsibility to dispel the perception and the reality of special interest influence. I work hard to publicly explain my votes and to maintain an ongoing dialog with my constituents. I listen carefully to my constituents and seek their trust and I reciprocally trust them to listen to what I have to say and recognize that I am trying to do the right thing. I am not too afraid of special interest money being spent on behalf of potential opponents, because I trust my constituents to sort out the truth.
Given my basic faith in my constituents, I haven’t been sure how to react to the Citizens United case. In that case, decided two years ago, the Supreme Court overturned important federal campaign rules and several of its own previous decisions. The specific holding of the case was that the government may not limit expenditures of general corporate funds to influence voter opinions through political communications, provided that the corporation is spending independently, as opposed to donating to a candidate’s committee. In SpeechNow, decided shortly after Citizens United, the District of Columbia Court of Appeals, often seen as the second highest court in the land, found that Citizens United compelled a further finding that government may not limit corporate or individual contributions to a political action committee that intends only to make independent expenditures (as opposed to contributing to candidate committees).
Some have suggested that these rulings pose a “serious and direct threat to our democracy.” Massachusetts Senate Resolution 772, which may come to a vote over the next few months, recites this concern and “calls upon the United States Congress to pass and send to the states for ratification a constitutional amendment to restore the First Amendment and fair elections to the people. ”
So, the question is: Should we be starting a process to amend the constitution to make it lawful for government to limit independent campaign spending by corporations and unions and perhaps wealthy individuals? Put it another way, do we, the people, feel that we need to be protected by government from hearing the loud voices of powerful private interests — perhaps because we believe we ourselves won’t be able to adequately hear other interests or perhaps because we believe that our elected officials will too often be intimidated and corrupted by the loud voices — or is it enough to require thorough disclosure of the sources of spending so that we and our elected officials can decide on our own what we want to tune out?
The decision in Citizens United was a close one, joined in its main holding by only five justices. Justice Stevens, who had previously authored the Austin case which was overturned by Citizens United, wrote a blistering dissent, that the other three dissenters joined. One thing is clear: Citizens United does reverse a considerable body of jurisprudence. The radical nature of the decision is, in itself, troubling — see for example, these comments by constitutional law authority Larry Tribe.
Some have portrayed the decision as holding that corporations are people. This framing can support a powerful critique. The decision, wrong or right, is not so obtuse. It decides instead that government lacks the power to favor certain kinds of organizations of people in the political process. The first amendment itself draws no distinctions among organizational forms: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .”
Many have contacted me expressing the concern that corporate wealth will now further tilt the playing field in public debate. That view has been expressed by academic commentators as well. “It just strikes me that it is serious imbalance in power. Corporate speech already has a big voice at the table, ” said Elaine Kamarck, a lecturer in public policy at the Kennedy School. However, all nine of the Supreme Court justices reject the view that government should be in the business of “leveling the playing field.” Justice Stevens in his dissent stated that previous limitations on corporate contributions were not intended to “equaliz[e] the relative influence of speakers on elections.” And the majority quoted favorably the Davis case:
Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices.
I personally agree that there is no safe way to allow government to decide which speakers or organizations have outsized influence in the political process, I believe that the framers’ faith in voters is well placed. It is not a naive faith — voters can make mistakes — but it is better to let them err than to allow whomever currently controls the levers of government to decide what the people get to hear.
The Citizens United dissenters agree, but distinguish between concerns about tilt of the process and concerns about corruption of the process. They summarize their argument as follows:
In sum, over the course of the past century Congress has demonstrated a recurrent need to regulate corporate participation in candidate elections to preserve the integrity of the electoral process, prevent corruption, sustain the active, alert responsibility of the individual citizen, protect the expressive interests of shareholders, and preserve the individual citizen’s confidence in government. These understandings provided the combined impetus behind the Tillman Act in 1907, the Taft-Hartley Act in 1947, FECA in 1971 and BCRA in 2002. Continuously for over 100 years, this line of campaign finance reform has been a series of reactions to documented threats to electoral integrity obvious to any voter, posed by large sums of money from corporate or union treasuries. Time and again, we have recognized these realities in approving measures that Congress and the States have taken. None of the cases the majority cites is to the contrary. [ellipses, quotation marks and citations omitted]
Clearly, there is no bright line distinction between tilt and corruption — a very steep tilt can verge into corruption. The dissent is expressing a willingness to engage in judgment calls about how much tilt is too much tilt and whether corporate spending per se creates unacceptable risk of too much tilt.
The leading case relied on by the dissent is Austin. In Austin, the Supreme Court held that a Michigan law prohibiting spending by corporations was valid. The plaintiff seeking the invalidation of the law was the Michigan State Chamber of Commerce, itself a corporation, which wanted to use its general treasury funds to buy advertisements supporting a candidate for state representative. The Austin court stipulated that “the mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment.” But the court accepted the state’s defense that “the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption.” It held that:
Michigan’s regulation aims at a different type of corruption [different from the corrupting influence of direct contributions to a candidate] in the political arena: 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.
The court acknowledged that not all corporations accumulate great wealth, but accepted that “it is the potential for such influence that demands regulation.”
The Citizens United majority overruled Austin, deciding, in effect, that independent campaign spending (by contrast to candidate donations) do not have the potential to corrupt the process. Certainly, this is not literally true, but the majority chooses to create a bright line rule to this effect, radically simplifying the jurisprudence of the first amendment as applied in the electioneering context. Under Citizens United, it is no longer necessary to scrutinize the details of the corporation and its electoral speech — if it is spending independently, it has the right to so.
The Western Tradition case, which the Supreme Court may shortly review, presents a compelling example of the Austin majority’s motivation for limitations on corporate spending. At issue in Western Tradition is a Montana law limiting corporate spending. The law goes back to the dark days of deep corporate corruption around the turn of the last century. The Montana Supreme Court refused to overturn the law despite its arguable conflict with Citizens United. The Montana Supreme Court reviewed the history that motivated voters in 1912 to approve the law against corporate spending, summarizing it as follows:
At that time the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests. The voters had more than enough of the corrupt practices and heavy-handed influence asserted by the special interests controlling Montana’s political institutions. Bribery of public officials and unlimited campaign spending by the mining interests were commonplace and well known to the public. Referring to W. A. Clark, but describing the general state of affairs in Montana, Mark Twain wrote in 1907 that Clark “is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell.”
With that history in mind, the Montana Supreme Court seeks to avoid the dictate of Citizens United by:
It will be interesting to see whether the Citizens United majority chooses to recognize these distinctions or opts to maintain its bright line rule that independent campaign spending is per se incapable of corrupting the political process and therefore may not be limited by government.
In considering whether to support S. 772 urging a constitutional amendment, the choice really is between (a) allowing the Citizens United bright line interpretation of the first amendment to stand or (b) seeking to reinstate a regime where courts and electoral regulators make judgment calls about how much independent spending to what ends through what media is acceptable from whom.
Conceivably, Congress or a constitutional convention might come up with a clean rule limiting organizational speech — a rule that, like the Citizens United rule, offers the clarity necessary to avoid burdening political speech with the threat of litigation, but which offers greater protection from overbearing interests. It is hard to imagine a true bright line against all independent electioneering by organizations — that would make it impossible for us, the people, to choose to associate ourselves and create entities to disseminate communications on our behalf. And it is even harder to imagine an amendment that would limit in a bright line way the electioneering activity of some individuals whose ability to command attention comes from wealth, as against those whose ability to command attention comes from beauty or eloquence.
So, a constitutional amendment is likely to return us to a regime which involves a lot of difficult judgment calls which have elements of arbitrariness. In the decisions discussed above, a number of distinctions are suggested that might bear on whether independent organizational or individual electioneering should be permissible:
Simplicity is generally preferable to complexity — especially so when the ability of us, the people, to determine whether we can lawfully speak is involved. The Citizens United decision has the virtue of simplicity: Under the new simple rules, if you are donating to a candidate, your spending can be limited in a number of ways, but if you are spending independently you are free to do as you please. The question then is whether the risks of corporate, union and other organizational dominance are so great that we want to be in the business of making those difficult distinctions or whether strengthening disclosure is enough.
And do we trust that, if we do amend the constitution, the additional speech regulatory power we put in place will really be used for good? Elizabeth Drew writing in the New York Review of Books states:
[T]here are numerous efforts to find ways to overcome the inestimable damage done by Citizens United. Responsible and irresponsible solutions have been proposed. The most popular and most wrongheaded proposal is to amend the First Amendment to allow restrictions on spending in favor of or against a specific candidate. At least a dozen versions of this proposal are floating about, some offered by groups active in political reform such as Common Cause and Public Citizen, and also by individuals—all of whom should know better than to go down this quite dangerous road. The fatal flaw in all such suggestions is the assumption that the forces of good will remain in control of any tinkering with the First Amendment.
And is the damage done by the decision in fact as great as it seems as first glance? Larry Tribe , writing before the emergence of the super-PAC, made the point that the pre-Citizens-United law made so many complicated distinctions that corporate speech was, in fact, allowed to a great degree. So the change wrought by the decision might not be so great as imagined. As an elected official, I certainly perceive that the power of union, corporate and other interests is very great in the legislature. Most of that power comes from consistent interest advocacy efforts that shape the consciousness of legislators. It’s hardly clear that more election cycle spending by these interests will change bottom line outcomes for them. For corporations involved in consumer markets, greater involvement in the electoral process creates great risks — they would generally prefer to remain on good terms with customers of both parties.
Despite sharing concerns about electoral corruption, I am unable to embrace Senate 772 at this time. I’m pretty sure I don’t want to support a call for a constitutional amendment without a much clearer idea of what the amendment might do — how it would preserve the kind of clarity that is necessary to protect free speech and what speech it might choose to limit. But I’m still thinking and I’d really like to hear from folks on the issue.
Senate 304, which would update state campaign disclosure rules so that they cover the new spending permitted by Citizens United, is a clear priority for me. I’m hopeful that we can make progress on Senate 304 over the months to come.