Money Trail: On Citizens United anniversary, a look back and glance ahead

Last modified: 7/14/2015 7:42:31 PM
People upset about money in politics shouldn’t direct all their anger at Citizens United, Lawrence Lessig said. And he’s not just saying that because it’s the ruling’s fifth birthday today.

The Harvard law professor and leader of the N.H. Rebellion said the idea that money is speech goes back decades, and the notion that corporations are people didn’t cause the Supreme Court’s 2010 decision on the constitutional law case between Citizens United and the Federal Election Commission.

In the wake of the Watergate scandal in the 1970s, the Federal Election Campaign Act increased disclosure and placed legal limits on political contributions in federal campaigns. The Supreme Court, in Buckley v. Valeo, struck down limits on spending in campaigns – saying it restrained political speech – but allowed limits on individual contributions, as long as they weren’t so high as to create the appearance of corruption, Lessig said.

“In that case, the court articulates this idea that money is speech. The truth is, despite the rhetoric around this issue, that’s not really a controversial idea,” he said.

Otherwise, he said, Congress might pass a law to suppress the independent press, saying you can’t spend money to run a newspaper. “It seems pretty uncontroversial. The First Amendment should allow a court to evaluate whether that kind of regulation makes sense. If money weren’t speech, there’d be no constitutional test about whether that regulation were admissible or not,” he said, noting that Congress might also be able to create spending limits for the purpose of protecting incumbents.

In the meantime, states had passed their own laws preventing corporations from making independent expenditures, Lessig said. In Austin v. Michigan Chamber of Commerce in 1990, the Supreme Court found that the Michigan Campaign Finance Act, which prohibited corporations from spending to support or oppose candidates in elections, did not violate the First Amendment. Lessig said Montana was the “clearest example in American history of a totally corrupted state” in the early 1900s when mining interests “literally owned the legislature.” It passed a series of regulations designed to recapture control from corrupt corporate interests, which included a ban on corporations spending any money in political campaigns, Lessig said.

Then comes the decision commonly known as Citizens United, which prohibited the government from restricting independent political expenditures by corporations.

“In Citizens United, what the court said was the only justification Congress can have for restricting speech is if it’s related to corruption,” Lessig said. “And by corruption we mean quid pro quo, this for that, kind of bribery corruption.”

Lessig said the court tried to answer the question of whether the regulation of speech – such as when the group Citizens United wanted to air and advertise a film critical of Hillary Clinton in 2008 in violation of the Bipartisan Campaign Reform Act of 2002 and was denied – is justified under the First Amendment.

“Even if the court said corporations are not persons, if Congress tried to regulate speech by corporations, the question is whether that regulation by Congress is legitimate, and I think the court would say it’s not,” Lessig said.

So in the wake of Buckley and Citizens United, individuals and corporations were allowed to spend unlimited amounts of money as long as it’s independent of campaigns, Lessig said. That also meant that state-level laws such as those in Minnesota and Montana were overruled. The Montana Supreme Court tried to argue that its laws, now made illegal, were the only thing driving out corruption – but the Supreme Court, without even hearing the state’s argument, summarily struck it down.

In 2013, the Supreme Court heard McCutcheon v. FEC, which found that the aggregate contribution limits for individuals to federal candidates were unconstitutional. That meant that there could be no limit to the amount of candidates to which a person can donate the maximum allowable $5,200 per election cycle, though the cap had previously been set to allow about 18 such donations. Lessig said the court argued that if it’s not corruption to make the donation to one person, it’s not corruption to make it to any number more.

Lessig said McCutcheon offered the court an opportunity that it didn’t take.

“That was an important case for the court to think about what the meaning of corruption is, and they didn’t do it. Because their way of thinking about corruption is always tied to individuals, it’s ‘Did you engage in bribery?’

“But another conception of corruption, which I’ve been arguing has been the conception of corruption from the Framers . . . it’s not the corruption of an individual but it’s the corruption of an institution,” he said.

If members of Congress are spending all of their time trying to raise money from a tiny fraction of extremely rich Americans, Lessig argues, they aren’t doing their duty of representing all of their constituents – “not the rich more than the poor,” as James Madison wrote in the Federalist Papers.

“So it’s the institution that has been corrupted, not necessarily individuals inside the institution,” Lessig said.

There’s an opportunity still for the Supreme Court to go back and consider a broader definition of corruption, Lessig said. It’s in a case from the Washington, D.C., Circuit Court that has not yet been advanced to the Supreme Court called v. FEC, which was decided shortly after Citizens United, Lessig said.

“I would predict that if the court wants a way to undo the damage these series of decisions have done to democracy, the way they’ll do it is to find a way to reverse that decision,” he said.

Some states have laws purporting to limit contributions to political action committees that have yet to be litigated, and in doing so they could question whether the SpeechNOW decision was correct.

“If the court were to think about corruption in a broader way or in a way more consistent with what the Framers of our Constitution thought, the court could easily say, ‘Well, it’s one thing to say you can spend your money, it’s another thing to say you can contribute unlimited amounts of money’ because that whole dynamic of contribution creates exactly the kind of dependence that is corrupting,” he said.

Regardless, Lessig said, to end the system of corruption in Washington will take some kind of bottom-up funding for campaigns such as proposed voucher systems or matching funds – because, he said, overturning Citizens United will only bring the country back to where it was five years ago, a broken system.

(Nick Reid can be reached at 369-3325 or or on Twitter @NickBReid.)

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