Today in the Community: November 9, 2011
Today in the Community we discuss the relationship between the Court and the media, and specifically appearances by Justices and former Justices in the press. The Justices make many public appearances, including lectures and visits to law schools, but interviews are relatively rare. Below, we welcome your thoughts about the virtues and drawbacks of greater communication between the Court and the media.
Here are five of our favorite comments from Tuesday’s discussion on campaign finance.
Justin Levitt – 1 Promoted Comment
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 (http://electionlawblog.org/archives/017415.html) 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).
Nathaniel Persily – 1 Promoted Comment
So much has been written about Citizens United and yet so much more remains to be said. What follows are just a few brief provocations concerning the possible implications of the decision both within and beyond the law:
1. Political Implications
Evaluating the political effects of Citizens United (CU) by itself is a fool’s errand. It was the latest (and not the last) in a series of libertarian campaign finance cases from the Roberts Court. Much of the alleged consequences of that case’s holding concern activities (such as unlimited spending by corporations on candidate related ads that shied away from specific messages of endorsement) that were also legal the day before the Court decided that case. Nevertheless, the story of CU’s consequences is one where the Court turned a license into a blessing. That is, even though certain activities by corporations may have been allowed even before CU, the breadth of the decision has made such activities more likely. What previously may have been phrased by general counsels as exploiting loopholes is now sanctioned as core First Amendment activity.
2. Jurisprudential Implications.
The jurisprudential implications of CU have yet to be fully realized. The decision steers the definition of corruption away from differential access and toward bribery and seems to remove the appearance of corruption as a compelling target of campaign finance reform. As such, the next shoes to drop may be the bans on corporate contributions to political parties or their alter egos. But the Court’s post-CU decision in Arizona Free Enterprise v. Bennett (echoing the pre-CU decision in FEC v. Davis) striking down a public campaign funding scheme also shows the broader implications of this jurisprudence. Those cases have will have consequences beyond campaign finance because they raise important questions as to how and when laws burden on speech.
3. Implications for Public Opinion.
The firestorm of public criticism that followed CU was unique. Campaign finance decisions usually do not rise to a level of salience or comprehensibility that leads the public to pay attention to such cases (let alone to have a case mentioned in a State of the Union address). Evenso, as a survey I conducted last year with Steven Ansolabehere (available at persily.com) suggested, the unpopularity of the CU holding is characteristic of the recent speech decisions (e.g., bans on depictions of animal cruelty, violent video games, or perhaps protests near military funerals, not included in the survey). For all the talk in the academy about how the Court never strays too far from public opinion, the First Amendment cases, including Citizens United, have proven to be outliers.
David Primo – 1 Promoted Comment
One of the most noteworthy effects of the Citizens United decision is the almost seamless transition of “good government” groups from advocating for more direct limits on speech to advocating for more indirect limits on speech, in the form of tightened disclosure requirements for corporations that wish to participate in the political process. While groups like the Center for Political Accountability couch their goals in terms of increased “accountability” of corporations to shareholders, the underlying intent is to limit certain forms of speech—specifically, corporate speech.
It’s unclear what problem, precisely, increased corporate disclosure is designed to solve, and given the past track record of campaign finance reform, there is good reason to be skeptical that disclosure will improve the political process much, if at all. Empirical research shows that campaign finance reform typically fails at achieving its intended ends. To give just one example, “clean elections” laws, under which candidates receive government subsidies in exchange for forgoing private contributions, did not meaningfully change politics in states like Maine and Arizona, and earlier this year the Supreme Court ruled the most popular version of these laws to be unconstitutional. Is there any reason to expect corporate disclosure regulations will fare differently?
Joe Birkenstock – 2 Promoted Comments
One predicted electoral consequence of overturning Austin v. Michigan Chamber of Commerce was an explosion of corporate spending on independent expenditures, including expenditures from large, publicly traded corporations – either in their own name or, more commonly, through intermediaries such as the Chamber of Commerce. Thus far, however, there has been relatively less of this sort of corporate political activity than some feared – the trillions of dollars in cash reserves held by publicly traded corporations simply hasn’t been brought to bear in meaningful degree.
To be sure, as many of the comments so far have noted, we don’t have the kind of disclosure system that would inform the public about exactly who provided the dollars spent on independent expenditures and electioneering communications, but existing law does require each sponsor of such ads to disclose how much was spent. And those totals, so far, simply do not support the proposition that CU has unleashed the tidal wave of corporate political spending some feared.
John Samples – 1 Promoted Comment
Over the next year, there will be a flood of complaints about the damage done by the Supreme Court’s decision in Citizens United. Setting aside the rhetoric, it is worth recalling what was (and is) at stake in that decision.
Justice Anthony Kennedy’s Citizens United opinion drew a clear line between political activities that could be regulated (contributions and sources) and those that could not (independent campaign spending). Kennedy did not make up that line. The Supreme Court had validated campaign finance regulation to prevent corruption or its appearance. In turn, corruption depended on a relationship between a donor and a candidate. Absent a candidate, campaign spending could not corrupt; it was “just” political speech, an activity protected by the Constitution. Professor Richard Hasen, along with many other critics of CU, wish to erase this bright line that marks the outer edge of state power. If, as Hasen suggests, all spending can corrupt officials, then all spending (and speech) may be regulated, assuming a congressional determination of impropriety is forthcoming (it will be). The authority of Congress over political speech will then be plenary. There would be no bright line marking the limits of state power. That would be a strange result for a government constrained by a Bill of Rights that were enacted precisely to indicate and reinforce those limits.
Recommended Citation: Tejinder Singh, Today in the Community: November 9, 2011, SCOTUSblog (Nov. 9, 2011, 9:33 AM), http://www.scotusblog.com/2011/11/today-in-the-community-november-9-2011/