Editorial Memorandum: Citizens United and Fair Elections

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  • Dale Eisman

A Supreme Court decision in Citizens United v. Federal Election Commission (FEC) could be announced as early as tomorrow, November 3, and is expected to expand the role of independent spending in American elections. In Citizens United – a case that originally challenged whether the provisions of the Bipartisan Campaign Reform Act (BCRA) limiting outside groups’ spending should also apply to pay-per-view movies — the Court appears poised to overreach and open a new door for the deepest-pocketed players to spend money on campaigns to elect or defeat candidates.

Possible Outcomes in Citizens United

All signs indicate the U.S. Supreme Court has a slim majority in support of rolling back restrictions on corporate and union spending in the upcoming decision in Citizens United. Such a move would come as no surprise for the Roberts Court, as the conservative majority has moved steadily toward deregulation of campaigns over the past two years with its Wisconsin Right to Life (2007) and Davis (2008) decisions.

There are at least three possible outcomes in the Citizens United case:

1. The Court could rule on narrow grounds that BCRA’s electioneering communications ban does not apply to on-demand movies. This is unlikely, given the Court’s highly unusual move of carrying the case over to the fall term and inviting argument on broader issues.

2. The Court could strike down BCRA’s electioneering communications ban on the grounds that it unconstitutionally vague or over-burdensome, or some other narrow rationale, thereby reversing its 2003 decision in McConnell v. FEC.

3. The Court could strike down BCRA’s electioneering communications ban on the sweeping grounds that it is unconstitutional to limit political spending by corporations and/or unions, thereby reversing its 1990 decision in Austin v. Michigan State Chamber of Commerce.

A broad holding that corporations and unions have a constitutional right to unlimited “political speech” (i.e., spending) would lead to subsequent challenges to the federal ban on corporate and union political spending in effect since 1947, the federal ban on corporate and union campaign contributions in effect since 1907, and similar laws in more than 20 states.

A narrower ruling would continue the path toward deregulation, albeit on a slower pace, but still have the effect of allowing more corporate and union money into the system and encouraging more direct challenges to remaining regulations in the future.

Policy Options for Dealing with Citizens United

With a decision for the plaintiffs in Citizens United, an already untenable situation will be made worse. The only comprehensive option available to change the rules of the game in Washington, D.C. would be to embrace a small donor/public funding of elections model like the Fair Elections Now Act (S. 752, H.R.1826) that empowers grassroots campaigns and allows candidates to run highly competitive races without relying on wealthy special interests. The incentives in this model would be to vastly expand the donor base available to candidates, increasing their capacity to compete with outside money in a post-Citizens United environment.

Three defensive legislative options are being discussed in Washington, D.C. Two of these are fairly limited responses, at best, and the other would take us in the wrong direction. The two limited responses are to narrow the Court’s ruling as much as possible by amending BCRA or the earlier laws banning corporate and union spending in elections, or requiring affirmative shareholder approval of political spending by corporations.

What Congress ought not to take up in the wake of the Citizens United decision is to raise contribution limits on PACs and individuals. That would further exacerbate the problem of money in politics.

While some of these options may constrain spending at the margins, new avenues for greater corporate political spending would remain open, and be given a fresh stamp of legitimacy by the Supreme Court. The Citizens United decision, combined with a string of other bad campaign finance rulings, will most likely signal the end of a purely regulatory regime as a viable approach to meaningful campaign finance reform.

More significantly, the fear of unlimited corporate political spending will fuel a rapidly escalating fundraising arms race. Elected officials will feel compelled to spend more and more of their time raising money, thereby further distracting Congress from the pressing issues of the day, creating fear of political reprisal for unpopular votes, expanding conflicts of interest, and further undermining the public’s confidence in government’s ability to act in the public interest. Over the long term, undoing the Court’s deregulation of political spending would require passage of a constitutional amendment (or a change in the composition of the Court).

The Best Option: Fair Elections Now Act

The only viable policy option on the table that will fundamentally change the playing field is the Fair Elections Now Act. The bill would allow candidates to voluntarily opt out of the escalating fundraising race and run vigorous campaigns relying on small contributions and limited public funding. Sponsored by Sen. Dick Durbin (D-Ill.) and Reps. John Larson (D-Conn.) and Walter Jones (R-N.C.) the bi-cameral legislation has 110 cosponsors in the House. In addition, a broad coalition of issue and constituency groups is backing the legislation.

A decision for the plaintiffs in Citizens United will make the Fair Elections Now Act more attractive to members of Congress, not less. Without a strong, voluntary public financing of elections system, candidates will be sentenced to a broken campaign finance system requiring that they rely on contributions from people with business before them. The path forward must be small donor democracy, not corporate democracy.