Wednesday, May 30, 2012

Citizens United: answering unasked questions

By Associate Clinical Professor Jessica Levinson

This op-ed originally appeared in the May 30, 2012 edition of the Daily Journal.

Much of the backlash around the Supreme Court's much-maligned 2010 decision in Citizens United v. FEC focuses on the battle cry that "corporations are not people." Well, as with all things, corporate personhood is a complex area of the law that boils down to sometimes they are, and sometimes they aren't. The substance of the Citizens United decision essentially comes down to two conclusions, both of which I believe are ill conceived.

First, the thin majority found that speaker-based identity restrictions are impermissible. Put another way, if the government cannot prevent individuals from spending money on independent expenditures, then neither can it prevent corporations from doing so. For a variety of reasons, which I have detailed in a recent law review article, I believe that in the campaign finance arena corporations should not, in fact, be treated as identical to individuals. While corporations are certainly made up of people, they are artificial entities created with numerous state-created benefits.

Second, the court, led by Associate Justice Anthony Kennedy, found that independent expenditures are not corrupting. This conclusion seems to make little sense in the real world. But as a result of some legal acrobatics, the court concluded that groups and individuals who spend money for or against candidates, but who do not coordinate with campaigns, cannot corrupt candidates. So go ahead and spend $10 or $10 million, no need to worry about potentially corrupting your favored candidate.

These two conclusions have led to the rise of so-called Super PACs. These political committees are independent only committees. Because they only spend money independent of campaigns, the money they spend cannot lead to fears of corruption (according to the court), so they can raise and spend unlimited sums. I would venture a guess that the average member of the public believes that candidates are not only aware of those spending large sums with the help of Super PACs, but they are indeed extremely grateful for such help. This gratefulness can easily cross over to a corruptive relationship, or at lease the appearance of such a relationship.

But when I teach Citizens United to my law students what I discuss with them is whether the substantive portions of the decisions are even the most significant aspects of the case. For a number of reasons I believe the answer may be "no."

First, corporations were relatively free to make independent expenditures before Citizens United. Shortly before Citizens United, in 2007, the court reviewed the provision at issue in that case - a portion of the law commonly known as "McCain-Feingold" that prohibited corporations and unions from using general treasury funds on so-called electioneering communications. What are electioneering communications? Well, in that previous ruling, in a case called Wisconsin Right to Life II, the court found that they were communications "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." That means that ads paid for with corporate general treasury funds that are susceptible to any other reasonable interpretation were not limited even before Citizens United. Let's highlight the consequence of that decision with a quick example. If I were running for office and a corporation wanted to use general treasury funds to run an advertisement which hurt my campaign, it could likely run the following commercial: "Jessica Levinson goes home and kicks her cat. She also beats her dog. Reportedly she mistreats squirrels. Call Levinson and tell her to stop beating animals." Surely at least one purpose of the advertisement is to convince members of the electorate not to vote for me. But perhaps another is to promote animal welfare. Therefore, could the advertisement by susceptible to any other reasonable interpretation?

Second, in Citizens United the court asked itself a question that was not posed by either party. When a non-profit corporation called Citizens United came to the Supreme Court they asked the court to find that it could run a documentary ("Hillary: The Movie") and advertisements for that documentary as a cable video on demand. The Federal Elections Commission found McCain-Feingold prohibited Citizens United from doing so. Simply put, by this point in the litigation the group wanted the court to find that McCain-Feingold could not be applied to them in that situation, they did not ask the court to find that the provision of McCain-Feingold at issue could not constitutionally be applied to anyone anywhere anytime period.

Instead of deciding the question asked by the litigants, the court instead asked the broader question of whether that provision of McCain-Feingold was unconstitutional on its face. This is a troubling move that is hopefully limited to the court's desire to come to a specific outcome regarding McCain-Feingold. Otherwise there is too little to stop the court from seeing as applied challenges as opportunities to overturn laws on facial grounds.

Third, there were narrower grounds on which the court could have ruled. In my view the court need not have asked itself the much broader question of whether this provision of McCain-Feingold was facially constitution. Instead, it merely could have followed the doctrine of judicial restraint and ruled on much narrower grounds. For instance, the court could have broadened an exception for non-profit corporations that wanted to spend general treasury funds on electioneering communications. It could have also found that McCain-Feingold was not intended to apply to communications shown on video on demand.

Fourth and finally, the court rather clumsily cleared the hurdle of stare decisis, a judicial doctrine that dictates that judges must respect prior decisions in order to promote certainty and respect to the judicial system. Instead in answering the question it posed to itself, the majority overturned prior cases. In 2003, in one of those cases, McConnell v. FEC, the court had upheld a facial challenge to the same provision at issue in Citizens United. One has to wonder whether all that changed between 2003 and 2010 was the composition of the court.

So whether or not you agree with the substance of the court's decision in Citizens United, it is important to think about how the court got there in the first place.

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