McCutcheon vs. FEC- Part 3: Citizens United

Almost as soon as the Supreme Court announced they would accept the McCutcheon case, the liberal media and their academic allies have portrayed this case as “Citizens United 2.0” or “Citizens United on Steroids.” However, much of the criticism is misdirected and illustrates liberal ignorance of the Citizens United case in the first place.

In 2002, Congress passed and Bush signed the Bipartisan Campaign Reform Act (BCRA), or McCain-Feingold, into law. That law had two main objectives: (1) to ban or limit so-called “soft money” in elections and (2) limit electioneering by third parties as a general election neared. As a result in a sort of compromise, the campaign contribution limits were increased and they were “tolled” on a biennial basis.

Soon after McCain-Feingold went into effect, the constitutional challenges began, but before we get to that, there was the case FEC vs. Beaumont which again upheld the corporate ban on direct contributions to candidates in political campaigns. The vote in that case was 7-2 with Scalia and Thomas in the minority. Kennedy joined the majority in a nod to the importance of precedent, namely Buckley vs. Valeo. Beaumont was a challenge against the 1971 FECA law, not BCRA as some make that mistake. Instead, the more widely cited case from that same term is McConnell vs. FEC when then- Minority Whip Mitch McConnell challenged the constitutionality of the BCRA.

For conservatives, the McConnell decision was only a partial victory. Essentially, the Court in 2003 upheld the constitutionality of BCRA. Reasoning that because “soft money” was often used for such non-political direct campaign activities like voter registration drives and get-out-the-vote efforts, speech was not as greatly impacted as more direct expenditures and that, therefore, examination of the provisions in question required a less exacting level of scrutiny. Applying this lower level of scrutiny, they then concluded that Congress was within their authority to limit “soft money” expenditures.

They went further and upheld the longstanding bans on direct union and corporate contributions and said this could be further applied to bans on their political advertisements. Kennedy, who was in the majority this time, said (to paraphrase) money is like water and corporate or union money would simply find another outlet to influence electoral outcomes. Thus, the ban on union or corporate communications served as an acceptable safety valve to prevent that outlet. This time, Rehnquist joined Scalia and Thomas in the dissent. In effect, McConnell was an affirmation of the Austin vs. Michigan Chamber of Commerce case heard a few years previous in relation to FECA, not BCRA.

In Randall vs. Sorrell, the Court ruled against a Vermont law limiting campaign contributions. Here the Court, in a 6-3 opinion by Breyer, relying on Buckley ruled that Vermont’s expenditures were unconstitutionally too low and that hindered free political speech. Although the decision upheld the $400 maximum campaign contribution limit, even a liberal like Stephen Breyer noted that the Vermont law was troubling and noted there were chilling “warning signs” by making the limits so low. Thus, this may be used as a justification for challenging the limits in the current McCutcheon case.

Regarding Citizens United, the writing was on the wall for the demise of certain parts of the BCRA in 2006’s decision, FEC vs. Wisconsin Right to Life Committee. The law made it a crime for a corporation (or union) to use funds for “electioneering communications” within 30 days of a primary, or 60 days of a general election. Wisconsin Right to Life aired a series of ads urging voters to call Wisconsin Senators Feingold and Kohl urging them to end actual and threatened filibusters against Bush judicial nominees which, although Obama and the Democrats complain now, was a tactic used very well and frequently against Bush nominees. The FEC filed complaints against the group who then challenged these provisions. In a 5-4 decision by Roberts, the Court reversed the lower courts which determined that the ads were express campaigning for or against a particular candidate. However, Roberts did not go so far as to make a blanket declaration against the 30 and 60 day bans basically leaving the thrust of the McConnell decision alone. However, there were certainly warnings in the decision that it may not survive Court scrutiny in the future if challenged directly. This was an “as applied” decision based on the specific content of the advertisements.

In 2007, the Court revisited McCain-Feingold, and specifically the “Millionaire’s Amendment.” This case addressed a particular class of candidates- those who were self-financed. Since contribution limits were considered fine under Buckley, a problem occurred when self-financed wealthy candidates had no spending limits, thus gaining an allegedly unfair advantage. Hence, the “Millionaire’s Amendment” was passed where campaign contribution limits were raised for candidates running against these self-financed ones. Davis, a wealthy congressional candidate, argued that the system created a distortion effect which then caused him to structure his campaign finances so as not to trigger the relaxation of the limits for his opponents thus creating an unfair advantage. In the majority opinion, Alito correctly noted that the Court, although allowing campaign contribution limits generally, never upheld imposing different contribution limits for competing candidates.

Of course, the main reason for campaign finance reform is to, in the words of the Court, remove actual or perceived corruption in the electoral process. Liberals believe they had their smoking gun case in Caperton vs. Massey Coal– a convoluted case out of West Virginia. A decision was rendered in favor of Massey Coal regarding a mining accident before a judge that received a $3 million campaign donation from Massey. Contrary to popular belief, this case simply revolved around the issue of judicial recusals, not campaign finance reform. The decision was in favor of Caperton when Souter declared that a judicial recusal is warranted if a reasonable person would expect a particular outcome. Using Souter’s rationale, Judge Walker in California should have recused himself from the gay marriage case because he is a homosexual since a reasonable person could expect him to rule in favor of the homosexual agenda. Likewise, liberals in the Caperton case tried to portray the conservative bloc’s dissent in as their tacit approval of the corrupting influence of campaign contributions in the electoral process and creating these to-be-avoided quid pro quo arrangements. A sober reading of the dissenting opinion, however, reveals that they voted as they did not based on these ideas, but because they felt that judges themselves should be given leeway to recuse themselves when they felt it necessary. Looked at another way, this was a judicial powers and discretion case.

Which then brings us to Citizens United first argued in the 2008-09 term. Everybody with a pulse knows the facts of this case and how it originated and they will not be rehashed here. According to some reports, after hearing the case, the Court was ready to side with Citizens United and Roberts reserved the opinion for himself. However, a draft opinion was so narrowly tailored to the case- a propensity of Roberts- that Kennedy’s concurrence had more support from Alito, Scalia and Thomas. Unable to get backing for the more narrow opinion, Roberts gave in, but being late in the term, instead held the case to be re-argued.

In the 2008 argument, it was obvious that the liberals on the Court saw this case as nothing but a statutory continuation of the ban on direct corporate or union “contributions” and “express political advocacy.” The conservatives saw the broader implications in light of a line of questioning where the government argued that theoretically, a law like BCRA could prohibit print publications IF they fell within the 30 or 60 day period before an election AND were funded directly by a corporation or union. Of course, they argued there were Free Press problems as well as Speech problems in that scenario, but the conservatives failed to rightfully see the difference.

On re-argument, Elena Kagan appeared before the Court and the gist of the conversation was about the history of First Amendment protections for corporations and whether the Court had ever addressed their rights in this context. Kagan argued that they should defer to Congress’ determinations that potential for corruption- hence, eliminating its appearance- was a justification for the provisions at question in the law. Conversely, conservatives and even Stevens and Breyer noted that Court silence on an issue was not necessarily approval, only that the question may have never come up. To do so would be indicative of an activist agenda-driven Court like the one under Earl Warren.

There was one very important, practical but largely overlooked question which was never answered in the questioning, noting that some 37 states had no barriers on corporate or union campaign contributions or expenditures with respect to state level campaigns. Kagan never answered the question and instead said McCain-Feingold was federal law and that corporations, unlike individuals, had greater powers because of amassed wealth. But, Kennedy argued, what was the difference between a corporation that amassed wealth and a wealthy individual donor? The answer was greater alleged access to elected officials. Ironically, Obama’s performance where actual certain wealthy actual contributors- NOT “expenders”- have had hugely great access to the White House is hypocrisy.

Liberal assertions regarding the opinion need to be addressed. First, Citizens United did not assert that corporations were “persons” in the traditional sense as we view the word “persons” or think of “people.” Instead, that FACT was well-established Court jurisprudence since at least 1818 in the Dartmouth College case. In fact, the very first Chapter of the US Code specifies that the word “person” applies to corporations unless otherwise specified. Regardless, the concept of corporations being persons is long-established law. Second, the decision did not open corporate and union coffers to campaign contributions. This case addressed an expenditure question, not contributions at all. Third, the Supreme Court, since it was not a contribution question, never addressed limits on those amounts. The corporate ban on donations was not addressed, which was first codified in 1907’s Tillman Act (thus Obama’s assertion that the decision overturned 100 years of law…Kagan used the same argument before the Court and was later corrected by Stevens and Kennedy). Additionally, Obama specifically stated that the decision would allow an influx of foreign money into the electoral process despite the fact (1) the decision said NOTHING about this and (2) Pete Olson, the counsel for Citizens United, conceded that Congress could pass laws to prohibit foreign money financing campaign electioneering in the United States. It was not even a question before the Court.

All the decision allowed was for corporations or unions or any group of individuals to use their treasury coffers for direct candidate advocacy in the political process through independent expenditures- that is, not directly coordinating with a political campaign. Of course, in the practical sense, the lines are often blurred and the Court recognized this and grappled with the issue.

The problem with the liberal analysis of Citizens United is that it is based on gross distortions, fear-mongering, falsities galore, and hypothetical scenarios. Getting back to that unanswered question regarding the states that did not ban corporate or union contributions or expenditures in state elections, in fact not a single concrete issue of corruption can be cited that CANNOT BE RECTIFIED through bribery or pay-to-play law enforcement. Liberals still argue to this day that the decision was nothing more than a victory for corporations. They are wrong! It was victory for the First Amendment and Free Speech in the area where it is most important- political discourse.

The horrors predicted prior to the decision have not come to fruition. In fact, liberal groups and unions have adapted quite well to the new campaign finance landscape. In the 2012 presidential election, outside spending by groups against Obama and for Romney outspent the pro-Obama/anti-Romney groups 3 to 1, but look who won. This alone is a dagger in the heart of assertions and fears of this influx of outside money influencing elections. In Congressional elections in 2012, outside spending soared over 2010 levels when Citizens United was relatively new. Still, the winning record of the groups that spent more was about 50% meaning that with more money any candidate has a 50/50 chance of winning. If anything, Citizens United has evened the playing field and made it more possible for challengers to incumbents to wage a campaign on equal financial footing.

And the reasons are obvious. Suppose you are a congressman from West Virginia, a coal-producing state. However, you have a very strong environmental record and fully endorse Obama’s green energy initiatives even if it means seriously curtailing the use of coal. Does anyone realistically believe that a large coal company is going to contribute to your reelection? Contributions follow the position; positions generally do not follow contributions. The fear of the quid pro quo situations are so rare as to be inconsequential and when discovered, there are a host of remedies ranging from censure and removal from office, civil litigation and criminal prosecutions.

In the next part, these line of cases will be discussed in relation to the McCutcheon case to be heard later this year. Unlike expenditures, this law is a direct challenge against the limits of individual contributions encoded in McCain-Feingold. While many are saying that this Court is disturbing more than 100 years of settled campaign finance law, as I hoped to illustrate, the law in this area is anything but settled. In the 19 years from Austin to Citizens United, the Court heard some 12 cases which were all over the place. Citizens United avoided the “as applied” narrow readings and went for the true jugular- the First Amendment concerns. If they did otherwise, they would have been inundated with a morass of litigation focusing on minute differences- the length of a commercial, how much was advocacy, how much was informational, print versus broadcast media, cable versus commercial broadcasts, pay-per-view versus “documentary,” etc., etc., etc.! How any court can reason that “Hillary-the Movie” is afforded no constitutional protection, but a movie like Michael Moore’s “Fahrenheit 911,” deserves constitutional protection is ludicrous.