Citizens United and the Orphaned Antidistortion Rationale
| Citation | Vol. 27 No. 4 |
| Publication year | 2010 |
Georgia State University Law Review
Article 4
3-13-2012
Citizens United and the Orphaned Antidistortion Rationale
Richard Hasen
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Recommended Citation
Hasen, Richard (2010) "Citizens United and the Orphaned Antidistortion Rationale," Georgia State University Law Review: Vol. 27: Iss. 4, Article 4.
Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/4
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CITIZENS UNITED AND THE ORPHANED ANTIDISTORTION RATIONALE
Richard L. Hasen*
Introduction
Soon after his retirement, Supreme Court Justice John Paul Stevens gave an interview to the CBS television program 60 Minutes. Interviewer Scott Pelley asked the Justice to identify the Court's "mistake" in Citizens United v. FEC,1 the 5-4 decision striking down corporate spending limits in candidate elections. When Justice Stevens, author of the primary Citizens United dissent, asked which mistake he should emphasize, Pelley told him to choose. Justice Stevens then responded:
Well, you know, basically, an election is a debate. And most debates, you have rules. And I think Congress is the one that ought to make those rules. And if the debate is distorted by having one side have so much greater resources than the other, that, sometimes may distort the ability to decide the debate on the merits. You want to be sure that it's a fair fight.3
Reacting to the Stevens interview, David Bossie, the President of Citizens United, lauded the Court's decision. He said that allowing corporations to spend their general treasury funds on elections (rather than being limited only to political action committee funds raised from human sources) "will allow the conservative movement to
* Visiting Professor of Law, UC Irvine School of Law, William H. Hannon Distinguished Professor of Law, Loyola Law School, Los Angeles. Thanks to Ellen Aprill and Bob Mutch for useful comments and suggestions.
1. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010).
2. Justice Thomas also wrote a dissent, for himself alone, on disclosure issues. Id. at 980 (Thomas, J., concurring in part and dissenting in part).
3. 60 Minutes: Supreme Court Justice John Paul Stevens Opens Up (CBS News television broadcast Nov. 28, 2010), available at http://www.cbsnews.com/stories/2010/11/23/ 60minutes/main7082572.shtml?tag=contentMain;contentBody.
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participate on a 'level playing field' with groups like MoveOn.org and labor unions."4
How strange that both the Citizens United prime dissenter and plaintiff described the decision in terms of its effect on political equality, an interest the Supreme Court in Citizens United termed the "antidistortion interest."5 On 60 Minutes, Justice Stevens's main complaint about the decision was that the unequal wealth of corporations could now distort electoral outcomes. In contrast, Mr. Bossie defended the decision on grounds that it will create greater equality across groups engaged in political battles.
The irony in this debate over whether Citizens United promotes or impedes political equality is that Mr. Bossie's group argued before the Supreme Court that the First Amendment barred taking political equality concerns into account in fashioning campaign finance rules.6 In his dissent, Justice Stevens did his best to avoid acknowledging that he was defending corporate spending limits, in part, on political equality grounds. Justice Stevens's failure to expressly defend corporate spending limits on political equality grounds came after the government had abandoned the rationale in the Supreme Court.
This brief Essay argues that the antidistortion argument did not deserve to be orphaned, and remains—as the quotes by Justice Stevens and Mr. Bossie illustrate—a key animating principle in thinking about the desirability of campaign finance laws. Part I explains how the antidistortion argument became an orphan in Citizens United, laying the blame with the Solicitor General's office and with Justice Stevens's muddled Citizens United dissent. Part II
4. Ryan J. Reilly, Citizens United President Enjoys 'Bitching And Moaning' Over Supreme Court Case, TPM Muckraker (Dec. 1, 2010), http://tpmmuckraker.talkingpointsmemo.com/2010/12/ citizens_united_president_enjoys_bitching_and_moan.php.
5. Citizens United, 130 S. Ct. at 903. Until the end of this Essay, I use the terms "antidistortion rationale" and "political equality rationale" interchangeably. At the end, I explain more fully the relationship between the two terms.
6. Supplemental Brief for Appellant at 1, Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2009) (No. 08-205), available at http://electionlawblog.org/archives/Citizens%20United--Supplemental%20Brief.pdf ("For the proper disposition of this case, the Court should reject the anti-distortion rationale for suppressing corporate political speech formulated in Austin and relied upon in McConnell—which is the only justification the government has advanced for prohibiting Video On Demand distribution of Hillary.").
2011] ORPHANED ANTIDISTORION RATIONALE 991
explains the cost of this orphaning for the future of campaign finance and related laws: keeping the political equality rationale in the closet will make it harder to get legislative and judicial change in the campaign finance arena going forward, and it prevents a full and honest debate about the desirability and cost of campaign finance laws justified on political equality grounds.
I. How the Antidistortion Rationale Was Orphaned7
A. From Austin to Citizens United
Before Citizens United, the leading case on the constitutionality of corporate spending limits in candidate elections was Austin v. Michigan Chamber of Commerce. In that 1990 case, the Supreme Court upheld corporate spending limits in candidate elections against a First Amendment challenge. Austin did so based upon what the Supreme Court in Citizens United later termed9 the antidistortion interest: the government's interest in curbing the "corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas."10
Austin itself was somewhat of a surprise. Earlier, in the leading 1976 case, Buckley v. Valeo,11 the Supreme Court, applying strict scrutiny, held that spending limits imposed on individuals violated
the First Amendment. The Court concluded that individual spending limits could not be justified by an anticorruption interest because of the lack of evidence that independent spending could
7. This Part assumes the reader is familiar with the Court's campaign finance jurisprudence generally and how the Citizens United decision changed that jurisprudence. For readers without that background, see generally Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 Mich. L. Rev. 581 (2011).
8. Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990).
9. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 903 (2010).
10. Austin, 494 U.S. at 660.
11. Buckley v. valeo, 424 U.S. 1 (1976).
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corrupt candidates. Nor could the limits be justified on equality grounds, because doing so would be "wholly foreign" to the First Amendment.14
Though Austin sought to characterize the antidistortion interest as a "different type of corruption in the political arena,"15 it fairly can be understood as voicing a type of political equality concern.16 That is, under Austin "corruption," the way corporations "distort" the political process is not through quid pro quo corruption—"dollars for political favors"—or even "undue influence," but rather through corporate spending that is disproportionate to the public's support for the corporation's political ideas.
B. The Citizens United Briefing and Argument: Abandonment
Citizens United presented a delicate task for the Solicitor General's office, the arm of the United States Department of Justice charged with defending the position of the United States before the Supreme Court. Though the Supreme Court in the 2003 case of McConnell v.
FEC had reaffirmed Austin and extended it to labor unions, it was clear by the time the Court agreed to hear Citizens United that the Court had moved from its period of greatest deference toward legislative efforts at campaign finance regulation to its period of greatest skepticism.19 The cause of the shift was the replacement of
13. Id. at 47.
14. Id. at 48-49.
15. Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990). In First National Bank of Boston v. Bellotti, the Supreme Court left open the question whether independent corporate spending could be justified on traditional anticorruption grounds. 435 U.S. 765, 788 n.26 (1978). The Court did so despite Buckley's statement that independent individual spending cannot corrupt because of the absence of coordination, and in Citizens United, the Court rejected the possibility of proving corruption by independent expenditures left open by Footnote 26 of Bellotti. Citizens United, 130 S. Ct. at 909. For further discussion of Footnote 26, see Hasen, supra note 7, at 596, 618.
16. This is a point I made in Richard L. Hasen, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore 114 (2003). In his concurring opinion in Citizens United, Chief Justice Roberts cited this work and others to support the proposition that Austin's rationale was one grounded in political equality concerns. Citizens...
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