Cracks in Citizens United
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Cracks in Citizens United

May 2012

Last December, Second Circuit Judge Guido Calabresi opened his concurring opinion upholding limits on local campaign contributions in New York City by citing the New Testament. Luke 21:1-4 recounts Jesus's parable of the rich giving gifts to the temple treasury, while a poor widow puts in two small copper coins - all she has to live on. "Truly I tell you," Jesus says, "this poor widow has put in more than all the others."

Judge Calabresi gleaned from the parable his own perspective on campaign finance laws, bound as they are by the U.S. Supreme Court's opinion in Citizens United v. Fed. Election Comm'n (130 S. Ct. 876 (2010)). "All is not well with this law," he warned. "The wider the economic disparities in a democratic society, the more difficult it becomes to convey, with financial donations, the intensity of one's political beliefs. People who care a little will, if they are rich, still give a lot. People who care a lot must, if they are poor, give only a little. Jesus's comment about the rich donors and the poor widow says it all." (Ognibene v. Parkes, 671 F.3d 174,199 (2d Cir. 2012).)

More than a year of immense spending on political candidates and super PACs appears to be having some effect on the appellate courts. Two significant cases may soon be argued before the U.S. Supreme Court; the appellants in both are represented by James Bopp Jr., principal in the James Bopp Law Firm of Terre Haute, Indiana.

Bopp, founder of the James Madison Center for Free Speech, is best known for representing Citizens United, the group that produced and distributed the political attack film Hillary: The Movie during the 2008 presidential campaign. Since then Bopp has filed dozens of lawsuits challenging any limits on campaign contributions or expenditures. In recent months he filed a writ of certiorari in Ognibene, challenging New York's attempt to prevent "pay-to-play" contributions to candidates for municipal office. And he won a stay in a case testing the constitutionality of Montana's Corrupt Practices Act (W. Tradition P'ship v. Attorney Gen., 363 Mont. 220 (2011), stay granted pending certiorari as Amer. Tradition P'ship v. Bullock, 2012 WL 521107). Both cases have the potential to exploit widespread public dissatisfaction with the Court's majority opinion in Citizens United.

In February, Bopp asked Justice Anthony M. Kennedy to immediately stay a ruling by the Montana Supreme Court that found constitutional a century-old law prohibiting corporations from using their own money to oppose or support candidates in state elections. The 5-2 majority of the justices had parsed language in Citizens United to permit a finding that "restrictions upon speech are not per se unlawful, but rather may be upheld if the government demonstrates a sufficiently strong interest." The majority located that interest in examples of well-financed corruption during the early decades of Montana statehood, dominated by Anaconda Copper Mining Company, and reversed a trial court ruling that struck down the law.

Bopp was so certain the Montana justices had contravened Kennedy's assertion in Citizens United that independent corporate expenditures did not "give rise to corruption or the appearance of corruption" that he urged the U.S. Supreme Court to reverse American Tradition without briefing or oral argument.

Within weeks the Court granted a stay, but not without a pointed statement by Justice Ruth Bader Ginsburg, which was joined by Justice Stephen Breyer. "Montana's experience, and experience elsewhere since this Court's decision in Citizens United," wrote Ginsburg, "make it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption.' " The comment indicates a possible line of questioning at oral argument.

However, the state court dissent in American Tradition - which was longer than the majority opinion - undercuts expectations that the Roberts Court might change course. "Respectfully, I cannot agree that this 'Montana is unique' rationale is consistent with Citizens United," wrote Justice James C. Nelson. "[T]he notion ... that these characteristics entitle Montana to a special 'no peeing' zone in the First Amendment swimming pool - is simply untenable under Citizens United. ... [A] summary reversal on the merits," he concluded, "would not surprise me in the least."

But Nelson also made it clear he did not agree with Citizens United. "It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spending capability of corporations to place corporate views before the electorate," he wrote. "In spending ability, bigger really is better; and with campaign advertising and attack ads, quantity counts. In the end, candidates and the public will become mere bystanders in elections."

"To my knowledge," he continued, "the First Amendment has never been interpreted to be absolute and gloriously isolated from other fundamental rights and values protected by the Constitution. ... Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government's compelling interest in preserving the fundamental right to vote in elections."

Nelson ended by noting he finds "the entire concept" of corporate personhood offensive. "Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people - human beings - to share fundamental, natural rights with soulless creations of government," he wrote. "Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins."

Nelson's dissent addressed the immense blind spot in Citizens United: Justice Kennedy's simple assertion that "the appearance of influence or access ... will not cause the electorate to lose faith in our democracy." (130 S. Ct. at 910.) Kennedy had dismissed such concerns as the "anti-distortion rationale," overruling a different Court majority in Austin v. Mich. Chamber of Commerce (494 U.S. 652 (1990). Quoting from Buckley v. Valeo (424 U.S. 1, 48-49 (1976)), Justice Kennedy observed in his opinion that the "concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."

To be fair, even the Obama administration is uncomfortable with the anti-distortion rationale - otherwise known as promoting a "level playing field." Richard L. Hasen, a law professor at UC Irvine who writes the Election Law Blog, contends in a 2011 research paper that then-Solicitor General Elena Kagan had downplayed the argument in a supplementary Citizens United briefing, then abandoned it altogether in oral argument. In response to a question by Chief Justice Roberts, Kagan stated, "We do not rely at all on Austin to the extent that anybody takes Austin to be suggesting anything about the equalization of a speech market."

Kagan is now an associate justice on the Court. Hasen predicts in his research paper that it could be another generation before the Court approaches the anti-distortion rationale again. But in an interview he says the financial crisis, widening disparities of wealth and power, and the rise of Occupy Wall Street have led to "a renewed focus on class that we haven't seen for a while."

The reality of class divisions in Citizens United's "marketplace of ideas," Hasen says, "keeps a drumbeat on the Court." He anticipates full briefing and a hearing in American Tradition, with a reversal and strongly worded dissents from Justices Ginsburg and Breyer. "The only audience that matters," he says, "is a five-justice majority."

But Judge Calabresi had a bit more faith that Citizens United may be undone. "Just as constitutional law eventually came to embrace [the concept of one-person-one-vote]," he wrote in his Ognibene concurring opinion, "so too will it come to accept the importance of the anti-distortion interest in the law of campaign finance."

Reader Comments

Roger Pitt Whitcomb - May 3, 2012
Thank you for this hopeful ray of overturn. Until overturned, the SCOTUS has effectively high jacked the founders' notion that each citizen should effectively have an equal say in the election process. If the development of corporations, their over powering access to funds and a means to use them anonymously in elections had ever been anticipated by the founders, the Declaration would have been structurally reinforced enough to prevent the Citizens United case from even being heard.

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