Conferences / Symposia, Election Law, Floyd Abrams, Free Speech, Law Professors, Politics, SCOTUS, Supreme Court

Why Citizens United Is Not the End of the World

This morning I attended a very interesting panel discussion sponsored by the Yale Law School Center for the Study of Corporate Law, Citizens United: Mountain or Mole Hill? Because the talk was sponsored by my rather left-leaning alma mater, I expected the answer to the question presented to be “Mountain” — and not just any mountain, but Mount Doom.

I was pleasantly surprised. The deeply thoughtful discussion pointed more in the direction of “Mole Hill.” This was especially surprising given the liberal bona fides of the three star panelists:

  • Floyd Abrams, the longtime Cahill Gordon partner and celebrated First Amendment lawyer, who argued in the case for Senator Mitch McConnell (as amicus curiae, in support of Citizens United);
  • Heather Gerken, the J. Skelly Wright Professor of Law at Yale Law School, and a leading scholar of election law and voting rights; and
  • Samuel Issacharoff, the Reiss Professor of Constitutional Law at NYU School of Law, and an expert in voting rights and civil procedure.

Both Professors Gerken and Issacharoff worked on the Obama campaign. And we all know what President Obama thinks of Citizens United.

But what did this eminent trio of panelists have to say about the case?

Floyd Abrams, the first panelist to speak, began with a disclosure (appropriately enough — disclosure and disclaimer requirements figure prominently in Citizens United). He represented Senator McConnell on the winning side of the case, so he has a favorable opinion of the decision. Abrams, regarded by many as the nation’s leading First Amendment attorney, called Citizens United as “a big win for free speech.”

Abrams described his initial response to the facts of this case. Citizens United, a nonprofit corporation, put together Hillary: The Movie, an attack on then-Senator Hillary Clinton, who was at the time seeking the Democratic Party’s nomination for president. Abrams described the film as “an expression of fury” against a candidate for elected office — core political speech. His gut reaction: how could this not be protected under the First Amendment?

If any one of us had put together a film advocating the defeat of a presidential candidate, it would have been protected speech. The issue presented to the Court, according to Abrams, was whether the status of Citizens United as a non-profit corporation should trigger application of a different body of law.

“This didn’t seem like a hard call to me,” said Abrams. In its opinion, the Court cited about 25 cases in which corporations received First Amendment protection in the past. It did overturn two prior opinions in its ruling — Austin v. Michigan Chamber of Commerce, and McConnell v. FEC (overruled in part) — but in doing so, the Court hearkened back to older cases that Austin and McConnell had given short shrift to. This was not, contrary to some critics of Citizens United, a wholesale reshaping of this area of law.

Abrams added that he doesn’t think Citizens United will be easily reversed, even with changes in the composition of the Court (such as the possible arrival of Solicitor General Elena Kagan, who argued the case for the government). He urged those in the audience who view the presence of money in politics as a problem to find ways of addressing it that don’t involve limiting speech.

I expected Professor Heather Gerken, a liberal — she clerked for Judge Stephen Reinhardt — to have more of a “sky is falling” take on the case. But Gerken actually began her remarks by saying that many legal academics don’t see Citizens United as the end of the world.

As a practical matter, even before Citizens United, the case of FEC v. Wisconsin Right to Life was already on the books. Under this precedent, corporations can already sponsor “issue ads” in the 60-day period leading up to an election — even “issue ads” that mention candidate names. (Gerken used the hypothetical example of an ad urging voters to contact Senator Schumer and tell him to stop kicking puppies; a corporation could have paid for such an ad even before Citizens United was decided.)

Gerken then noted that, at least so far, corporations haven’t shown much interest in opening their treasuries to flood the airwaves with political advertisements. As for the effect of Citizens United on prior law, although Gerken criticized Justice Kennedy’s approach to stare decisis, she noted that Austin — the main case that Citizens United overruled (McConnell was overruled only in part) — wasn’t very widely cited leading up to Citizens United anyway.

What concerns Gerken most about Citizens United is its possible effect on election reform, a cause near and dear to her own heart. Election reform advocates favor such measures as non-partisan redistricting and non-partisan election oversight — bye bye, Katherine Harris. (To learn more about reform, check out Gerken’s book on the subject, The Democracy Index: Why Our Election System Is Failing and How to Fix It.)

The most troubling aspect of the Citizens United opinion, from Gerken’s perspective, is the language pointing in the direction of limiting Congress’s power to regulate elections. As she wrote in the American Prospect:

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.

The third panelist, Professor Sam Issacharoff, expressed agreement with Gerken in terms of Citizens United having limited practical effect. He pointed out that it’s about the ability of corporations to engage in independent, uncoordinated political activity — i.e., not their ability to contribute directly to candidate campaigns. (Claims that the decision allows corporations to directly contribute unlimited amounts to candidate campaigns are simply wrong.)

(Issacharoff also offered a response to all the hand-wringing over the possibility of treating corporations as “persons” — you know, living, breathing persons, like you and me — for purposes of campaign contributions. Even if we did that, these “persons” would still be subject to the $2300 contribution limit. Are we really so frightened of Wal-Mart being able to donate $2300 to some candidate?)

In terms of whether corporations will take advantage of their post-Citizens United ability to get involved in elections, Issacharoff expressed skepticism. About half the states already allow corporations to engage in this type of activity — and the corporations generally don’t do so. Take California, which allowed independent expenditures before Citizens United. Who were the top 10 funders of the top 25 independent spending committees? Not big corporations, but unions and Indian tribes.

Why is this the case? According to Issacharoff, the data suggest that large public corporations do not want to take positions on hot-button issues. What benefit would come to a Fortune 500 company from taking, say, a position on abortion? It would just lose customers (whether pro-choice or pro-life). As Issacharoff noted, you didn’t see amicus briefs in Citizens United from major corporations advocating for a right to get more involved in politics.

There are additional reasons why corporations are unlikely to become major players in terms of independent expenditures in elections. For example, fiduciary duties limit a company’s ability to get involved in politics. It might violate fiduciary duties to shareholders for a corporation to spend millions of dollars on political advertising that can’t be shown to benefit the corporation.

In addition, corporations generally prefer to deal with government through methods other than election expenditures. Big companies are more comfortable proceeding through the legislative and regulatory process — e.g., through lobbying — than by spending money to put ads on the air. This is why, Issacharoff said, it took a “goofy, nutty, utterly irrelevant corporation” like Citizens United to take this case up to the Supreme Court.

“Real corporations wouldn’t be doing things like making ‘Hillary: The Movie,'” he said. “It’s just not good for business.”

Citizens United: Mountain or Mole Hill? [Yale Law School]
The Real Problem with Citizens United [The American Prospect]
The Democracy Index: Why Our Election System Is Failing and How to Fix It [Amazon]
California Independent Spending For and Against Candidates: Unions, Indian Tribes, Individuals, and Corporations [Volokh Conspiracy]

Earlier: Breaking: SCOTUS Expands Free Speech in Politics By Liberalizing Campaign Finance Rules

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