Monday, March 12, 2012

Campaign Finance and a Possible Solution to Citizens United v. FEC

Electing a candidate of your choice, and publically supporting your political beliefs are at the core of civil liberties. However, with the increasingly more rapid rise of powerful fundraising organizations thanks to recent court cases, navigating an efficient way to allow the arena of political free speech to flourish while also not being dominated by those most flushed with cash has become a hot point for activists.

The Supreme Court case, Citizens United v. FEC, has received a wave of negative attention for its linking of political speech to money in overruling portions of the Bipartisan Campaign Reform Act (BCRA) that put limits on certain types of expenditures. Citizens held that, because money is essentially the only way to effectively diffuse political speech, to limit the amount of expenditures a person or corporation makes in promoting their own beliefs—as opposed to contributions directly to a candidate—is an impermissible limit of free speech, and therefore a violation of the First Amendment.

In Citizens, the Court acknowledged that while there was an important interest attempting to limit corruption, independent expenditures did not pose the same threat of quid pro quo corruption that direct contributions to a campaign did. The Court ruled that the threat of possible corruption that expenditures posed was less important than the chilling of political speech that the regulation being litigated posed. The Court, however, upheld limits for direct contributions.

A 2010 D.C. Court of Appeals case, v. FEC, clarified and continued Citizens’ holding by making clear that an organization, officially a “political action committee (PAC),” that was formed only for independent-expenditures—again, meaning that the PAC would only spend under their own discretion, not contribute money directly to a campaign—could raise an unlimited amount of money as long as the PAC didn’t work in concert with a campaign (whatever that means, and no one really seems to know).

The FEC officially designations Super PACs as Independent-Expenditure PACs, but that is a lot more boring to type out than “Super PACs.” So, hello, Super PACs.

Perhaps the most common critique of these decisions goes something like this: money isn’t speech, and corporations aren’t people with First Amendment rights that we should be worrying about. Therefore, limits on the amount of money spent by Super PACs should be limited in order to prevent corruption.

Now, I don’t like the way campaigning has been altered by the rise of the modern Super PACs. Candidates are forced to be full-time fundraisers, whether they are in or out of office.
However, I don’t think the answer to overruling Citizens is to deny here that, at least from a functionalist view, political speech does equal money spent to get the message out. Further, while I’m not arguing that corporations aren’t people, we actual people do have a right to assembly.

This right to assembly is an extremely important right for civil liberties. It is an individual right that gives us the constitutional support to come together as groups to promote, protest, and express our views. This right, paired with the reality of the role money plays in promoting political speech, suggests that attacking the absolute basics of the idea that money is speech in the campaigning world may not be the most sound course to take to defeat Citizens.
Instead, I think looking to different types of approaches is needed to defeat Citizens, as promoted by several constitutional scholars may be the solutions. Generally, these approaches fall into two categories: first, litigation strategies centering around attacking the Court’s reasoning as an impermissible overruling of a content-neutral restriction of free speech; and second, looking towards different types of public financing regulation. 

Lawrence Lessig, in particular, promotes many different solutions to the campaign finance problem along the second vein described above. Perhaps most radically, he suggested a new Constitutional Convention that would create an amendment to overturn Citizens. Additionally, he suggests new ways of organizing public financing. However, with the Republican filibuster of the DISCLOSE Act, legislation aimed at defeating Citizens United, legislation may not be the most efficient means to defeating the Court’s extreme protection of independent expenditures. 

Instead, I think the solution to Citizens may be found in the long history of content-neutral/content-based distinction in free speech jurisprudence. Limits on expenditures apply to conservative and progressive groups alike. They are, inherently, content-neutral. Content-neutral restrictions on free speech have been upheld in a variety on contexts as long as the state interest is strong enough. Specifically, the Supreme Court held in Ward v. Rock Against Racism, that content-neutral restrictions on free speech may be upheld if those restrictions, “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of the information.”

In Citizens, the court essentially dismissed the idea that state interest in preventing corruption was “significant” enough in the context of expenditures to satisfy this content-neutral test; however, the Court did held that in terms of direct contributions, the interest was strong enough.

Time, and this election may be enough to show the Court’s failure in its distinguishing expenditure limits from contribution limits. In the 2010 election in Texas alone, in the wake of Citizens, a study by Texans for Public Justice demonstrated a twelve percent increase in PAC spending. Current projections for the 2012 elections are even more steep and obvious.

The Super PAC supporting New Gingrich’s campaign, for example, Winning Our Future is being kept afloat by one family, the Adelsons. If Gingrich were to be elected as the Republican nominee (an unlikely event at this point, to be sure), any court or person would be hard pressed to demonstrate how the infusion of wealth in this manner doesn’t rise the exact same corruption concerns as direct contributions do. 

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