Citizens United and the illusion of coherence.

• Author: Hasen, Richard L.

The self-congratulatory tone of the majority and concurring opinions in last term's controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority's view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions and to a broader set of election-related television and radio broadcasts. The majority saw itself as returning the Court to the fountainhead of this jurisprudence, the Court's 1976 opinion in Buckley v. Valeo. Citizens United indisputably harmonized campaign finance law on the question of the constitutionality of spending limits on corporations, even if its view of Austin as an "outlier" remains contested. But the Court in doing so amplified and solidified other significant, incoherent aspects of its campaign finance jurisprudence.

Part I of this Article situates Citizens United in the campaign finance jurisprudence that preceded it and describes in detail the key opinions in the case. Part II explains how the Court's analysis in Citizens United is likely to lead to new incoherence in the Court's campaign finance jurisprudence, because it is unlikely that the Court will follow the new case to its extreme, for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates. Part III suggests that incoherence is likely to be an enduring feature of the Court's campaign finance jurisprudence, because consistent application of a coherent approach could well be politically unpalatable for majority of the Justices on the Court. It also considers the challenge such incoherence poses for lawyers arguing campaign finance cases in the Supreme Court and lower courts.

TABLE OF CONTENTS INTRODUCTION I. CITIZENS UNITED'S PLACE IN THE SUPREME COURT'S JURISPRUDENCE A. Campaign Finance Jurisprudence Before Citizens United B. Citizens United 1. The Background 2. The Opinions II. THE CONTINUED INCOHERENCE OF CAMPAIGN FINANCE JURISPRUDENCE AFTER CITIZENS UNITED A. Foreign Spending B. Judicial Elections C. Contribution Limitations III. DOCTRINAL INCOHERENCE, POLITICAL COHERENCE? CONCLUSION INTRODUCTION

The self-congratulatory tone of the majority and concurring opinions in last term's controversial Supreme Court blockbuster, Citizens United v. FEC, (1) extended beyond trumpeting an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. (2) The triumphalism extended to their view that the majority had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, (3) which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, (4) which extended Austin to unions and to a broader set of election-related television and radio broadcasts. (5) The majority saw itself as returning the Court to the fountainhead of this jurisprudence, the Court's 1976 opinion in Buckley v. Valeo. (6)

Citizens United indisputably harmonized campaign finance law pertaining to the constitutionality of spending limits on corporations, even if its view of Austin as an outlier remains contested. (7) But in doing so, the Court amplified other significant, incoherent aspects of the its campaign finance jurisprudence. In this regard, consider the Court's declaration as an empirical matter--apparently for all types of elections and all types of spenders--that "independent expenditures ... do not give rise to corruption or the appearance of corruption." (8) As part of its justification for this unsupported empirical claim, the Court embraced a narrow, crabbed view of corruption. (9) This view is contrary to other precedent, including Buckley and other cases upholding campaign contribution limits. Most notably, Citizens United excludes "[i]ngratiation and access" as possible forms of corruption, (10) yet these concepts are at the core of the Court's decisions upholding contribution limitations. Consider also the Court's declaration in Citizens United that in the campaign finance context neither the identity of the speaker (11) nor any distortion of the political process caused by disproportionate spending (12) can ever be the basis to limit someone's right to spend in elections.

This language will force the Court either to adopt a view that no limits on money in politics are ever constitutional or, more likely, vote to sustain some limits on money in politics through doctrinal incoherence. For example, it is unclear how, if the Court took its own broad pronouncements in Citizens United seriously, it could possibly sustain spending limits against foreign nationals and governments, who might seek to flood U.S. election campaigns with money. Indeed, if the Court took its own language seriously about the meaning of corruption, even normal limits on contributions to candidates would be in serious danger of being struck down as a First Amendment violation.

We need not wait for future cases to see this incoherence, however, because the Court's new doctrine is already incoherent. The Citizens United majority did not satisfactorily explain how independent expenditures--which apparently cannot corrupt--were so corruptive, apparently corruptive, or distorting of a judicial election in Caperton v. Massey (13) that the Court mandated the recusal of a state supreme court chief justice heating a case involving a corporate executive who had made large independent expenditures supporting the chief justice's election. (14) The Citizens United majority is not treating all elections and speakers equally in deed, even if it is in word.

By criticizing the Court's campaign finance doctrine as incoherent, I do not mean to suggest that the Court could not or should not decide some campaign finance questions in an inconsistent manner. That is, the Court could develop coherent constitutional arguments justifying different treatment for campaign contributions and campaign expenditures, or for campaign expenditures in judicial elections and other elections, or for the treatment of foreign-initiated campaign spending on elections and spending by domestic corporations. On the contribution-expenditure distinction, for example, the Court could (and should) apply a single definition of corruption and impose on the state a single evidentiary burden for proving the existence or appearance of corruption, and then judge the constitutionality of contributions and expenditures under that single standard. As I show below, however, the Court has not done so. The Court's jurisprudence instead reads as though different courts have decided both its contribution and expenditure decisions. Instead of reconciling inconsistent standards for judging constitutional questions in this arena, the Court ignores the contradictions. The Citizens United Court's condemnation of Austin as a lone "aberration" (15) perniciously masks the regularity of its incoherence in the campaign finance arena. Most importantly, the capacious rhetoric in Citizens United will lead lower courts astray, as they take the Court's reasoning and dicta--not just its holding--as directions for how to resolve other campaign finance cases.

The Court's present and future incoherence in its campaign finance jurisprudence reveals a broader concern: the Court's approach to jurisprudential questions may be tempered by political sensibilities. As explained below, (16) Just as the Court before Citizens United treated corporations and labor unions as subject to identical campaign finance regulation despite the apparent inapplicability of the Austin antidistortion rationale to labor unions, it is likely to treat foreigners and American citizens wishing to make campaign expenditures differently despite the uniformity of the rhetoric of free speech rights in Citizens United. This analysis suggests that the Court's jurisprudence, while certainly shifting toward a deregulatory direction, may not move to complete deregulation unless the Court is willing to endure continued public backlash. At least in the campaign finance context, it may be that the Court's doctrine is bounded at its extremes by public opinion.

Part I of this Article situates Citizens United in the campaign finance jurisprudence that preceded it and describes in detail the key opinions in the case. Part II explains how the Court's analysis in Citizens United is likely to lead to new incoherence in the Court's campaign finance jurisprudence because it is unlikely that the Court will follow the new case to its extreme-for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates. Part III suggests that incoherence is likely to be an enduring feature of the Court's campaign finance jurisprudence because consistent application of a coherent approach could well be politically unpalatable for a majority of the Justices. It also considers the challenge such incoherence poses for lawyers arguing campaign finance cases in the Supreme Court and lower courts.

1. CITIZENS UNITED'S PLACE IN THE SUPREME COURT'S JURISPRUDENCE

   1. Campaign Finance Jurisprudence Before Citizens United (17)

      The fountainhead of modern U.S. campaign finance jurisprudence...