Nexus: Chapman's Journal of Law and Public Policy

We, The Nexus Journal of Law and Policy, hosted our annual Symposium this year on the topic of Citizens United v. Federal Election Commission. I'm proud to say I was part of such a fabulous production and gathering of diverse, intelligent scholars. We had presenters on the faaaar left and presenters on the faaaaar right, and the ideological dichotomy engaged the captive audience, myself included.

Grant Davis-Denny, an Associate at Munger, Tolles & Olson LLP and Board Member of the California Common Clause, kicked off the keynote presentation. Mr. Hugh Hewitt, Chapman University School of Law Professor, Academic Advisor to the Nexus Journal, and popular radio personality introduced Davis-Denny as "a new generation of campaign finance scholar." Perhaps that is why I enjoyed his presentation the most; he too has yet to buy into the dogma of the "old regime."

Davis-Denny made it clear from the beginning his stance on Citizens United: it was one of deep concern. Davis-Denny is a "big fan" of disclosure as part of campaign finance regulation. He campaigned for the McCain Fein-gold legislation and remembers the day it passed vividly; it was the day he chose to propose to his wife. Davis-Denny detailed the already apparent impact of Citizens United on this election: reportable outside spending has exceeded what was spent in the entirety of the 2008 campaign by 73%, and that figure was calculated with a few weeks of campaigning left to go! Spending is around $140 million, and, as Davis-Denny pointed out, it was estimated in 2008 that over 70% of the spending was outside, which means that $140 is just the spending the public knows about.

He did concede, however, that it is tricky to know if Citizens United is directly responsible for the increase because prior to the decision corporations were allowed to fund implied advocacy measures. It may not matter much to the corporations to be able to now expressly tell the public who to vote for or against, but spending is still increasing and inadequacy in disclosure laws remains troubling.

Also troubling is the evolution of the Court's position on what constitutes corruption. In the 1976 decision of Buckley v. Valeo the majority held that Congress has an interest in preventing money in politics that is less than outright corruption. In McConnell v. Federal Election Commission (2003), while the Court upheld a ban on soft money contributions, Justice Kenney's dissent made it clear that there is nothing improper with money buying access or influence so long as it isn’t quid pro quo corruption. This dissent, according to Davis-Denny, became the majority position in Citizens United. "A well understood, substantial and legitimate reason to make a contribution to one candidate is that the candidate will make political outcomes that the supporter favors," but, as Davis-Denny argued, it is not well understood by most that a functioning democracy includes contributions that can buy political favors. I agree.

Davis-Denny then went on to describe what I find to be a blatant example of judicial activism by Justice Kennedy. Davis-Denny is involved in an Arizona litigation concerning their system of public financing for elections. The Arizona system provides candidates with 1/3 of the money they are eligible to receive up front. If the opposition spends more than the grant, then the state matches the spending dollar for dollar up to 200% of the initial grant. Since Arizona instituted this system, Davis-Denny noted, there has not been a campaign finance scandal and, with more people able to run for office, there has been a desirable increase in competitive races. Privately funded candidates in Arizona sought an injunction late in the election cycle against candidates who were publicly funded on the theory that matching funds chilled their speech. The 9th Circuit found that the Arizona system was not unconstitutional and upheld the law. The petitioners filed an emergency application with Justice Kennedy, who took the remarkable step of granting the application. There is now a stay on the release of any more public funds until the court decides upon the briefings that its ordered, which Davis-Denny is working on. This, he said, is a disturbing trend that the rules of the game are changing at the last second. Furthermore, Kennedy's move is not consistent with judicial restraint or federalism, and the public should be very concerned. Again, I agree.

Davis-Denny concluded that, while we should all be concerned, the good news is that we can still work towards better disclosure and contribution regulations, as well as develop alternative systems of campaign financing, combining partial public funding and encouraging small donors to participate in a public financing system.

I concluded that Citizens United, on its face isn't what worries me. Proponents of the decision highlight the fact that disclosure disclaimers still apply to corporate spending, and corporations still cannot directly fund candidates. But, even with these regulations in place, I'm still skeptical that corporations actually adhere to them. Money talks, as the Supreme Court itself has pointed out, and I have a feeling money will find its way into influential pockets no matter what the law says. Citizens United, in authorizing corporate spending on express advertisements, means little in my opinion. What does worry me is the Court itself. Kennedy is making power grabs for the Court, authorizing emergency briefs, and effectively altering the outcome of the Arizona election. The Court is refusing to concern itself with anything save outright corruption. I concur, however, with Davis-Denny that using money to gain access and influence IS, to the average American struggling to pay their bills, outright corruption. Furthermore, if special interests have the buying power to help elect legislators who will be favorable to their interests, are special interests not effectively writing the rules? And, if that's the case, how can the Court ever expect those rules to be broken?