Wednesday, November 9, 2011

Professors Levitt, Levinson opine on Supreme Court's campaign-finance jurisprudence on SCOTUSblog

Two Loyola professors, Justin Levitt and Jessica Levinson, contributed to SCOTUSblog's recent forum on the effects of the Supreme Court's campaign-finance jurisprudence on the election. Their posts follow. Read the entire forum at

Associate Professor Justin Levitt's post:

We don't yet know the electoral impact of Citizens United. The decision gave us a new wave of SuperPAC entities flaunting their new SuperPurchasingPower. But before Citizens United (excepting the 2002-2007 stretch from McCain-Feingold to Wisconsin Right to Life II), nonprofits could freely advertise that "Candidate Smith Hates Puppies," and could raise plentiful corporate money to do so. Citizens United removed only the additional ban on an explicit exhortation, of disputed incremental value, to vote the puppy-hater out. The difference is not insignificant: corporations can now strut, rather than slink, to the political marketplace. That makes fundraising easier and funding pools larger.

Ultimately, though, these SuperPACs may represent merely a new vehicle for some very old influence. Even if the new legal warmth for corporate political cash amounts to a difference in kind and not just degree, tangible electoral results need not necessarily follow. The money arrives just as the media market is splintering, making it more difficult for any sustained campaign to dominate any given informational channel. And as numerous failed candidates from the .01% have demonstrated, money may buy a seat at the table but does not alone guarantee victory. A deep American populist strain tends to resist massive expense by the few to persuade the many. There's a catch: the current disclosure regime does not meaningfully distinguish one from the other. For that, though, the blame thus far lies not with the Court (which has encouraged robust disclosure), but with Congress (which has not).

Associate Visiting Clinical Professor Jessica Levinson's post:

Citizens United has already had a deleterious affect on the electoral process. Public outrage surrounding the decision has only grown as corporations and moneyed interests have set up a shadow campaign finance system. Corporations can now give and spend nearly unlimited sums to help elect preferred candidates or defeat candidates they see as less favorable to their interests. Individuals increasingly feel that they cannot affect the outcome of electoral processes. Individual voices are being drowned out by the giving and spending of unlimited sums of money in the political marketplace. As a result voters feel disengaged in our representative democracy. The erosion of public confidence in a representative system of government is deadly serious.

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