The Floodgates Were Already Open
What will the Supreme Court's campaign finance ruling really change?
Citizens United, the fourth in a series of decisions from the Roberts Court that has narrowed or struck down campaign finance regulations, has garnered headlines of shock and awe. But the writing for it has been on the wall since the court's 2007 decision in FEC v. Wisconsin Right to Life. That case, which interpreted the same provision of the same law as Citizens United, held that corporate and union ads were constitutionally protected so long as they did not explicitly endorse or oppose candidates. The difference now is that corporations and unions can tell you directly who to vote for. In other words, before Citizens United, a corporation or union could sponsor ads with its treasury funds that said "Tell Congressman Smith to stop destroying America." After Citizens United, they can add at the end "and, by the way, don't vote for him."
The difference is an important one for constitutional theorists. But blaming this decision for opening the floodgates to corporate cash simply ignores recent history. The gates were already wide open. Any flood that swamps candidates in the 2010 election could have been unleashed even before the court's most recent decision. The harder question is what this all means for Democrats, Republicans, and everyone else.
In campaign finance, more than in any other area of constitutional law, the replacement of William Rehnquist and Sandra Day O'Connor with John Roberts and Samuel Alito has been deeply felt. The meaning of the First Amendment has been changing for the past few years, and the Roberts court's first revolution has taken place on the terrain of political money. In 2006 in Randall v. Sorrell, the court struck down Vermont's contribution limits as too low. The next year in Wisconsin Right to Life, it wounded the federal regulation on corporate electioneering that it has now killed. And in FEC v. Davis in 2008, it struck down the "millionaire's amendment," which attempted to target the electoral advantages enjoyed by self-funded candidates.
So, who has benefited from this revolution? Given the apoplexy of Democrats and the euphoria of Republicans in the wake of the new decision, it seems easy to identify the political coalitions favored by the new constitutional rule. Easy doesn't necessarily mean wrong. Perhaps corporate money will now flow in great amounts toward ads supporting Republican candidates. Union money will flow as well, but not as much, so Democrats and their causes might be at a disadvantage. As a consequence, policy may skew toward protecting corporate interests in Washington and the many states with similar (and now unconstitutional) bans on such spending. Or so the argument goes.
Predicting winners and losers from either a new decision or new legislation governing campaign finance has proven to be a tricky business, however. A vocal minority thought the McCain-Feingold law might actually hurt Democrats, for example, because historically they had been better able to raise money in larger chunks from fewer donors (especially unions) rather than Republicans, who had a comparative advantage in a broad base of small contributors. Of course, the Obama election, with its unprecedented success among small donors over the Internet, seemed to redefine our collective assumptions as to who could raise how much money from whom.
Similarly, many (including some of the justices) viewed McCain-Feingold as pro-incumbent, because it muted the voices of the political parties, unions, and corporations, which are best positioned to spend money to buy the name recognition and exposure for challengers that incumbents get for free. However, it is just as plausible that, under the new regime, corporations and unions will feel the need to ingratiate themselves with current incumbents who have incredible power to craft regulations and to allocate money in ways that could literally define their existence. If that is so, perhaps the Democrats, as the party currently in control, will prove to be short-term beneficiaries of the ruling.
The political parties as institutions were probably the losers. Their power is now diminished relative to that of outside groups funded (now in unlimited amounts) by corporations and unions. Perhaps this is a good thing: The extreme cohesiveness and polarization of the political parties might be countered by independent, nonparty bases of support that influence candidates. At the same time, and I'd argue more likely, the decision might polarize the parties even further, because independent spenders tend to advocate extreme positions.
But will the corporations in fact spend all the new millions being predicted? Remember that in the wake of McCain-Feingold, the assumption was that corporations would simply funnel their money into shadowy interest groups, such as 527s. In fact, although such groups blossomed, they did so mainly with contributions from individuals, not companies. Rather than consistently trying to buy influence through TV ads, corporations may more often be on the receiving end when politicians shake them down for campaign cash. Perhaps the stimulus, TARP, and a new age of increased government regulation of industry have restruck the balance. Or perhaps, as was historically the case, corporations will continue to spend much more on lobbying, which has often proved a more efficient means of influencing policy. If so, then the world of corporate influence in the immediate aftermath of Citizens United may not look much different than the world that preceded it.
Nathaniel Persily is the Charles Keller Beekman professor of law and political science at Columbia Law School.
Photograph of John Roberts by Mandel Ngan/AFP/Getty Images.