Nexus: Chapman's Journal of Law and Public Policy

As Editor-in-Chief, I am proud to say that I am one of the first who will laud the importance of the Supreme Court’s decision in Citizens United v. FEC. This is not simply because I have a vested interest in the success of our upcoming Symposium on October 22, 2010, nor because I have a similarly vested interest in the success of our publication on the Symposium topic; it is because the Court’s decision was truly remarkable.

Citizens United is remarkable due to its impact on First Amendment jurisprudence, the media, and campaign finance reform in general. The majority’s opinion (5-4) overturned Austin v. Michigan Chamber of Commerce, and with it, the ban on corporate independent expenditures. The majority explained, “The First Amendment has its fullest and most urgent application to speech uttered during a campaign for political office. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by the United States Constitution.” Citizens United v. FEC, 130 S. Ct. 876, 900 (internal quotations omitted).

Based on the Court’s purported reverence for political speech, it reasoned, “Political speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The worth of speech does not depend upon the identity of its source, whether a corporation, an association, a union, or an individual. The concept that Government may restrict the speech of some elements of United States society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Id. at 904. Thus, the Court extended First Amendment protection to corporations even though they “are not actually members of [our society], [t]hey cannot vote,” and they cannot “run for office.” Id. at 930 (Stevens, J., dissenting).

Citizens United created a stir in the media when President Barack Obama chastised the Court for overturning 100 years of precedent to which Justice Alito mouthed, “not true.” It has incited some citizens to start entire campaigns to amend the Constitution and overrule the Court. See e.g. Movetoamend.org, reclaimdemocracy.org, pfaw.org. Those who attended David Cobb’s “Special Discussion of Citizens United v. Federal Election Commission,” on Thursday night got to preview the type of passions which have been evinced by the Court’s apparent head nod to corporate interests.

Here comes the kicker. The decision has led to little, if any, direct spending by corporations on independent expenditures. This is due, in part, to the Supreme Court’s less controversial holding (8-1) in Citizens United that the disclosure provisions of the BCRA were constitutional. In a nutshell, corporations are allowed to fund attack ads so long as they disclose who they are. I personally have not any seen McDonalds against McCain or Warner Brothers against Whitman attack ads. More likely, you will see the disclosures on such ads refer to groups such as “Citizens to Elect John Doe” or “People for a Free Country” as the groups who have funded such ads. This makes sense. No corporation in its right mind (pardon the personification) will attach its name to an advertisement lambasting a candidate. That lesson has already been learned the hard way – just ask Target’s CEO Gregg Steinhafel. Thus, no corporation, at least not yet, has had the hubris to directly fund issue ads during election season. However, the decision goes further by giving corporate donors the “psychological green light.”

This is explained well in Michael Luo’s article in the New York Times, “Money Talks Louder Than Ever in Midterms” part of which is excerpted below:

“Interestingly, the legal changes directly wrought by the case have turned out to be quite subtle, according to campaign finance lawyers and political operatives. Instead, they said, the case has been more important for the psychological impact it had on the biggest donors.

‘The difference between the law pre- and post-Citizens United is subtle to the expert observer,’ said Trevor Potter, a former chairman of the Federal Election Commission and a critic of the ruling. ‘To the casual observer, what they have heard is the court has gone from a world that prohibited corporate political speech and activity, even though that isn’t actually the case, to suddenly for the first time that it’s allowed. It’s that change in psychology that has made a difference in terms of the amount of money now being spent.’

Even before the decision, corporations had significant latitude to sponsor what appeared to many voters to be political advertisements, as long as they fell under the guise of “issue” ads. Now, they can simply be more direct. But many heads of corporations and superwealthy individual donors who were not even part of the court case have taken away a much more simplified, overarching message, according to lawyers who advise corporations on election law and to political power-players soliciting giant checks.

‘The principal impact of the Citizens United decision was to give prospective donors a general sense that it was within their constitutional rights to support independent political activity,’ said Steven Law, head of the Republican-leaning group American Crossroadsand its affiliate Crossroads GPS, which have emerged as major players in this election. ‘That right existed before, but this Supreme Court decision essentially gave a Good Housekeeping seal of approval.’

Benjamin L. Ginsberg, a campaign finance lawyer at the Washington firm Patton Boggs who has advised a long list of Republican-leaning groups over the years [and one of the Keynote presenter at our Symposium], described the ruling as a kind of ‘psychological green light’ for donors.” (http://www.nytimes.com/2010/10/08/us/politics/08donate.html?_r=2&ref=politics)

Thus, those who are upset at the Citizens United decision must understand what they are directing their anger towards. Overruling the decision will not fix the melee of secret spending which has increased five-fold from 2006. (http://www.washingtonpost.com/wp-dyn/content/article/2010/10/03/AR2010100303664.html). It will only revert Campaign Finance Law to its pre-Citizens United form. Corporations will not be allowed to directly fund independent expenditures; however, they will still be able to fund independent expenditures through contributions to 501(c)’s and 527’s as they’ve been able to do for years. For a helpful chart, see (http://washingtonindependent.com/wp-content/uploads/2010/10/CU1.jpg ) Therefore, to truly effectuate change, citizens who are upset with corporate funding of political campaigns should direct their actions to eliminating all corporate sponsorship. This will either require a complete overhaul of the regulatory structure or an amendment to the Constitution. To listen to leading scholars in this area of law, and to voice your own opinion, come to Chapman University School of Law on October 22, 2010, from 9:30 a.m. to 5:00 p.m. for the Nexus Journal of Law and Policy’s Symposium entitled, “Citizens Divided on Citizens United: Campaign Finance Reform and the First Amendment.”