Election 2012: How we got to Citizens United

July 25, 2012

Ballot Law

(Editor’s Note: With the upcoming Presidential election in November, we’ll be looking at developments in election and campaign finance law throughout the month of July.)

For the first week’s post on U.S. v. Danielczykclick here.

For the second week’s post on American Tradition Partnership, Inc. v. Bullockclick here.

For the third week’s post on Texas’ voter ID challenge, click here.

Citizens United v. FEC continues to be one of the most contentious rulings in the Supreme Court’s recent history.

But what makes the 2010 decision so controversial?

To some, it’s because the ruling extended First Amendment rights to corporations that were originally reserved for individuals.

Others may feel unsettled that this decision was well outside the scope of the original question before the Supreme Court (on only one section of 2002’s Bipartisan Campaign Reform Act that dealt exclusively with time limits on the airing of political ads).

As much as the ruling may disturb quite a few people, is Citizens United actually out of line with existing precedent?

Let’s start at the beginning of Supreme Court jurisprudence on campaign finance laws, which isn’t as early as you’d think: 1976’s Buckley v. Valeo.

Buckley, which began as a challenge to the 1971 Federal Election Campaign Act, first established that spending money to influence elections is a form of constitutionally-protected free speech.

Regardless, the ruling upheld certain campaign spending limitations, such as those on individual contributions to political campaigns and candidates.

The Court’s logic here was that “the integrity of our system of representative democracy is undermined… [when] contributions are given to secure a political quid pro quo from current and potential office holders.”

However, the Court struck down several other limitations, such as those on independent campaign expenditures, on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures.

“Independent expenditures” are monetary contributions made toward advocating the election or defeat of a certain candidate or political party.

In striking down these limitations, the Court found that the “dangers of real or apparent corruption” weren’t imminent enough to justify their burdens on expression protected by the First Amendment.

The same logic was used by the Supreme Court in Citizens United in striking down limitations on independent campaign expenditures by corporations – that the possibility of quid pro quo corruption or appearance thereof was too remote to justify the ban.

If these two cases (along with the numerous others decided in the interim) are any indication, the Supreme Court can detect when the dangers of quid pro quo political campaign contributions are sufficiently real to justify limitations of First Amendment speech rights.

What, then, are we to make of the Court’s statement in Buckley that “the scope of such pernicious practices can never be reliably ascertained?”

Well, that the Court is correct: it’s impossible to measure for certain the full extent of these practices.

And that, as such, the Court actually isn’t able to accurately gauge when the dangers of such practices reach a certain threshold of imminence.

So, how does the Court decide which campaign finance restrictions survive?

The short answer is, “through the subjective views of the individual Justices” (and the long answer is just a more detailed version of the short answer).

You’re free to review all of the campaign finance rulings since Buckley, such as 1990’s Austin v. Michigan Chamber of Commerce, 2003’s McConnell v. FEC,  2007’s FEC v. Wisconsin Right to Life, and 2008’s Davis v. FEC.

In none of those cases does the Court cite to any facts concerning the actual prevalence or absence of quid pro quo corruption; we’re just supposed to take the Justices’ word on it that it exists (or doesn’t).

And Citizens United is no different.

So does this mean that the decision was in line with precedent?

In that it allows the sitting Supreme Court wide deference to arbitrarily determine when a campaign finance law passes constitutional muster, Citizens United is completely aligned with existing precedent.