The future is also uncertain because this will not be the Roberts Court's last word on campaign finance. By treating corporations as a mere species of individual associations, the court has cast doubt on campaign finance regulations that treat corporations as posing a special threat. Most notably, the ban on soft money, which prevents corporate and union contributions to political parties and candidates, might be the next restriction to fall. If corporations are like individuals, how can Congress completely ban soft-money contributions from one while letting the other give within limits? The case RNC v. FEC, now working its way up to the court, poses a very similar question. Given the tone of Citizens United, we should expect a bold response.
For now, though the contribution limits that are ubiquitous in both state and federal law remain untouched by Thursday's decision, it has become more difficult to justify them. As my colleague Heather Gerken has argued at greater length, the court significantly narrowed the interests states can argue underlie such laws. In particular, Citizens United changed the very definition of corruption. In the case it overruled, Austin v. Michigan Chamber of Commerce, corruption included "the corrosive and distorting effects of immense aggregations of wealth [amassed] through the corporate form." No longer. Even the garden variety definition of corruption as signaling "undue influence on officeholders' judgment" or special access is under attack. As the court said in Citizens United, "The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. ... Ingratiation and access, in any event, are not corruption."
Because corruption of the quid pro quo variety is notoriously difficult to prove (after all, how many politicians admit they voted a particular way because of a campaign donation?), defendants historically relied on assurances from the court that states could target the appearance of corruption. Although still standing, that concept also teeters from the decision, as the court reinforced that "[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy."
In the short term, the president and several members of Congress are promising reform, each version of which raises its own constitutional questions. To target corporations, some urge that shareholders be required to vote to have treasury funds used for campaign expenditures. Or, given the presumed ability of the federal government to prohibit foreigners from spending money in campaigns, perhaps the government could ban expenditures by corporations substantially owned by foreigners. Or, perhaps it could change the tax code so as to reduce the incentives of corporations to spend money on political campaigns. Or, given the tremendous dependency of the financial industry and others on federal funds of late, the government could make eschewing electioneering expenditures a condition of its largesse. Or, in the same vein, states could condition the granting of a corporate charter on a promise to disengage from campaigns. Public funding of various sorts may be the constitutionally safest option, but in an age where the public has become suspicious of both bailouts and politicians, they are likely to be hesitant to use one for the other.
Several of these proposals raise questions of unconstitutional conditions. Some may also be seen as too clever by half. More than any area of election law, campaign finance had been characterized by the tug of war between the court and the political branches in the slippery mud of politics. Each law leads to its own loophole, either discovered by political entrepreneurs or poked by a court or agency. The political branches respond and the Supreme Court reins them in.
Five members of the court now hold those reins. The replacement of any one of them could lead to yet another redefinition of the First Amendment. Indeed, when the court regulates politics, it helps determine, in part, its own fate and the consequent meaning of the Constitution. As elections determine presidents and presidents choose justices, the court's pronouncements on election law, however well-meaning, can never be purely disinterested. Any justices who see themselves as constitutional umpires learn all too quickly that they are All-Star players in the game.
A version of this piece is cross-posted at Balkinization.
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