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Plutocrats United: The Impact of Citizens United Isn’t Simply About Corruption… It’s About Political Equality

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In recent years, few Supreme Court decisions have been as controversial – or as consequential – as the ruling in Citizens United v. Federal Election Commission in 2010, in which the 5-4 majority held that the First Amendment rights of organizations such as corporations, labor unions, and other associations were violated by provisions of the McCain-Feingold Act from 2002 which regulated their political spending and activities.

According to Richard Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, and the writer behind the venerable Election Law Blog, this decision was as unprecedented as it was unnecessary.

In an interview for IVN to discuss his latest book, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections, Hasen stated that the ruling not only overturned previous decisions by the court, but that the court had other options to resolve the plaintiff’s concerns.

In his description of the oft forgotten origins of the case, Hasen recounts how the court had several ways to address the complaint of the nonprofit group, Citizens United, which – in violation of a provision in McCain-Feingold – wanted to air a documentary critical of presidential candidate Hillary Clinton within 30 days of a primary election.

Hasen writes:

[T]he Court could have interpreted the McCain-Feingold law to apply only to short ads, not to ninety-minute movies. It could have said that Citizens United in showing this movie was really engaged in press activities, and thus entitled to the “press exemption” to spending rules. It could have said that even though Citizens United took a little bit of for-profit corporate money, it was still entitled to the exemption the Court had recognized for non-profit “MCFL corporations” in the 1980s.

But Hasen adds that the court “did none of those things” and instead embraced the case as a “pretext” to overturn previous decisions with which the conservative majority disagreed.

In defending its decision in Citizens United, the majority relied on the same rationale the Supreme Court used in the case of Buckley v. Valeo (1976): independent spending, because it is not coordinated with a candidate, cannot lead to quid pro quo corruption or have the “appearance of corruption” and is thus deserving of constitutional protection.

But Hasen regards this exclusive and narrow focus on tit-for-tat “corruption” by justices (and some reformers) as a distraction that prevents the public from understanding the other ways that money “skews” American politics – especially in favor of powerful interests. Hasen identifies three ways that money harms American democracy: in terms of electoral outcomes, legislative influence, and public confidence.

Hasen identifies three ways that money harms American democracy: in terms of electoral outcomes, legislative influence, and public confidence.
In regard to electoral outcomes, while Hasen insists on pushing back against the simplistic claim that “money buys elections,” he cites statistical and anecdotal evidence that candidates that outspend their opponents operate with a significant competitive advantage. In the 2012 House elections, for instance, candidates that spent more than their opponents won 95 percent of their contests.

As for legislative influence, Hasen refers to the comprehensive study by scholars Gilens and Page that found that public policy tends to reflect the will of the affluent rather than the will of the majority, and he cites many cases – from ambassadorship appointments for donors to carve-outs for lobbyists to outright bribery – to demonstrate the multifarious ways that money can and does shape policy.

Finally, as for public confidence, while there is little demonstrable connection between the laxity of campaign finance laws and public distrust of the political process, Hasen does cite a survey in which citizens of Albuquerque – where there are spending limits on mayoral elections – view their local elections as less influenced by special interest money than federal elections.

Hasen believes it is ultimately unpromising to try to dress up these concerns in the language of corruption so that the courts will decide, in the spirit of the Buckley and Citizens United rulings, to curtail the role of money in elections. Instead, he argues that there is a legitimate compelling state interest – the standard necessary to survive the court’s strict scrutiny test – in regulating political spending for the sake not of stemming corruption, but of safeguarding citizens’ “political equality.”

To develop his notion of political equality, Hasen coins the term “equality of inputs,” which he defines as “treating each voter as entitled to equal political power.” Toward this end, Hasen proposes a two-part reform of the campaign finance system: (1) giving each voter a $100 voucher to use for campaign donations in a federal election, and (2) capping the amount that an individual can spend on any one federal election at $25,000, and limiting an individual’s total spending on all federal elections to $500,000 for each two-year election cycle.

Hasen believes that this “vouchers + limits” reform would not only empower many voters who are currently too financially insecure to have much of a voice in the current political climate, but would also curtail the influence of the wealthy without squelching their own voices or reducing political competition.

Hasen finds evidence that the Supreme Court has implicitly endorsed the notion of political equality and the concept of equality of inputs in past decisions.

In Harper v. Virginia State Board of Elections (1966), for instance, the Supreme Court abolished Virginia’s $1.50 poll tax in state elections on the grounds that one’s wealth is an “irrelevant factor” that “is not germane to one’s ability to participate intelligently in the electoral process.” The Supreme Court also spoke to an implied notion of political equality in Reynolds v. Sims (1964), in which the court ruled that state electoral districts with wildly uneven populations violated the concept of “one person, one vote.”

According to Hasen, these rulings are indicative of an enduring (if unnamed) sympathy for the value of political equality and the notion of an equality of inputs, and Hasen believes that they should be applied to the issue of campaign finance.

Principles of political equality embodied in the Supreme Court’s rejection of poll taxes and its embrace of the one person-one vote rule should carry over to money-in-politics decisions.
Rick Hasen, 'Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections'
“Principles of political equality embodied in the Supreme Court’s rejection of poll taxes and its embrace of the one person-one vote rule should carry over to money-in-politics decisions,” he writes.

Here, too, Hasen sees encouraging precedents – especially when it comes to regulating political spending by corporations.

He points out, for instance, that the Supreme Court acknowledged the government’s legitimate interest in regulating corporate spending by citing a footnote from the case First National Bank of Boston v. Bellotti (1978), in which the Court remarked – presaging the passage of McCain-Feingold – that “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.”

Later, in 1990, the Supreme Court upheld a state limit on corporations’ spending in candidate elections in Austin v. Michigan Chamber of Commerce, and in 2003 it defended the constitutionality of much of the McCain-Feingold Act in McConnell v. FEC.

It was only with the replacement of Justice Sandra Day O’Connor by Justice Samuel Alito, Hasen observes, that the Supreme Court overturned its precedents in the Austin and McConnell decisions and ruled in favor of Citizens United in 2010.

It is for this reason that Hasen believes that the future of campaign finance reforms, including his own proposal and the legal theory that supports it, depends largely on the composition of the Supreme Court.

“Changing the Court is the most promising path to reform,” he writes.

Yet in the interview, Hasen stated that in the meantime there are other reforms that activists and voters can support regarding campaign finance. He recommended congressional and executive action to expand disclosure requirements so that the public knows who is involved in spending considerable amounts of money in federal elections, regardless of the kind of entity involved – for-profit or non-profit.

He also pointed to public-financed campaigns – especially those in which donors’ small contributions are met with a high-multiple match – as one model that has been successfully implemented in New York City and might be replicated elsewhere so as to engender some degree of political equality regarding the influence of money in elections.

But when it comes to serious and long-term campaign finance reform at the national level, Hasen cited the polarization and gridlock in Congress and in regulatory agencies like the FEC as reasons to doubt the possibility of imminent change.

“At bottom,” he said, “we’re going to need a better Supreme Court to deal with these problems.”

Author’s note: If you are interested in reading more from Hasen’s book, “Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of Americans Elections,” you can purchase the book here

Photo Credit: Elena Yakusheva / shutterstock.com

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18 comments
Dissident Politics
Dissident Politics

The comment about using Citizens United as a pretext to overturn decisions the conservatives disliked reminds me of a speech that Clarence Thomas gave about 7-8 years ago (at the Manhattan Club, I think - can't find that video again). Regarding precedent (stare decisis), Thomas said (paraphrasing): "I believe in stare decisis unless, of course, I disagree with the underlying decision."

That says it all. 

If Thomas' attitude is shared by all the conservatives and a republican wins the White House in November, then, e.g., Roe v. Wade and other interesting "liberal" decisions could easily fall in the 2018-2020 time frame. Justice Kennedy is 80 this year and Ginsburg is 83 and in poor health. Ginsburg is not likely to stay active over the next 4 years and Kennedy may decide to retire as well.

Howard McCartney
Howard McCartney

For anyone who has said " We want to take our country back. " Than this is where you start. Not fighting Republicans or Democrats but getting rid of Citizens United.

Robert Zmuda
Robert Zmuda

I just wonder when Hillary saw MLK speak and it " moved me, " was she still a Goldwater Gal campaigning for the racist Berry Goldwater? Rachel Maddow to Hillary: you are a known, entrenched corporate shill taking big money handouts "from Wall Street, doing paid speeches for Wall Street, 3 paid speeches from Goldman Sachs for $600,000" yet you say you want wealth redistribution. Will you do anything against big banks and Wall Street? "What do you say to Bernie sanders types...." (aka the 99% of Americans getting ripped off by big money) explain. Hillary: I went to Nasdaq and said hey you gotta cut it out. Any questions about her not doing a thing to help low, middle class people via REAL wealth redistribution? Get a clue Hillary bots. Put the pom poms down and up your game. Wealth redistribution is the most important issue BY MILES, effecting all races and people except the 1%, and this makes Bernie twice as good for this one issue ALONE, yet she has a superpac while claiming reform citizens united?? Uhhhhh, dont stand by your values or anything. Just gets uglier...... Hillary To Rachel Maddow: "look at my actions... No one tells me what to do!!!" Ok......... So I did some looking and here's what I found about her actions. 1. Walmart board director for 6 years.. 2. private fund raisers with Goldman Sachs and other private equity firms... 3. attended Donald Trump's wedding and received money from him (no joke) because she "thought it would be fun" 4. has a superpac to accept private big money donors while at the same time opposing citizens united. Need more red flags? Starting to see a pattern here. Bernie Sanders has no superpac but he does have max contribution limits from individual donors while refusing money from the rich. Wow! Conviction. Back to red flags...... 5. her son-in-law, Chelsea's husband, being a hedge fund manager. 6. Hillary Clinton’s donors also include the drug maker Pfizer, ExxonMobil, Dow Chemical, Goldman Sachs, Procter & Gamble, Coca-Cola and many more. 7. In the GMO debate, Mrs. Clinton has consistently sided with chemical ag. companies like Monsanto, who, not surprisingly, Hillary's law firm represented and who is a large Hillary donor. So no one tells you what to do......... unless they pay you off. Got it. Hillary will be soft on real banking, wall street, and tax reforms FOREVER... She is a life long corporate shill for the political establishment. Her actions contradict what you think about her.. Vote for and help elect Bernie Sanders for President in 2016 and shock the entitled establishment elites. Let them hear the shot across the bow! By Matt Saraceno

Walter Sperr
Walter Sperr

There can be no "equality" when the Republicans and Democrats constitute less than one third of all voters, but dictate the rules to the more than two thirds majority: Independents.

Bill Foster
Bill Foster

Why does a halfass celebrity get to make political statements

Dylan Swimm
Dylan Swimm

For corporations. Not individules. A corporate entity wanted to affect the campain using corporate funds. Leave that out of the quote much?

Dan Whitaker
Dan Whitaker

Citizens United took the fear of prosecution out of bribing politicians.

Steve Hough
Steve Hough

"Free speech" is not free when it comes to political contests. I agree with the author, in that a future SCOTUS is the best hope for restricting campaign finances. Future court appointees may be the only reason I would consider holding my nose and voting for Hillary, but on this issue it may make no difference. :( #FeelTheBern

Ben Hardin
Ben Hardin

“Toward this end (treating each voter as entitled to equal political power), Hasen proposes a two-part reform of the campaign finance system: (1) giving each voter a $100 voucher to use for campaign donations in a federal election, and (2) capping the amount that an individual can spend on any one federal election at $25,000, and limiting an individual’s total spending on all federal elections to $500,000 for each two-year election cycle.” I’m not as concerned about corporations distorting political equality as I am about uber-rich individuals doing so, inasmuch as in practice corporations contribute far less in campaign funds than do corporate executives. However, I do believe that corporations, because they are only persons as a defined legal fiction, should be denied the right of financing campaigns at all as they should defined as not having the First Amendment the right of free political speech. If efforts to require a measure of political equality, via amount of dollars spent by various entities, are defined and applied too precisely, I’m concerned that they might become so continuously politicized to thus achieve opposite of the intended effect. I appreciate Hasen’s advocacy of voter vouchers as a means to encourage political equality in a general sense. But in the October 16 posting on the FB page Electoral Reform for a More Favorable Congress, I proposed that the voters’ vouchers be used only in local situations in which there is disparity in the amount of campaign funds raised and spent by “underdogs” and “high rollers.” No congressional candidate should need to spend in campaign funds that the median amount spent by winning non-incumbent candidates in the previous election cycle.

Joseph E. Jepsen
Joseph E. Jepsen

"People who call to "overturn Citizens United" have no earthy clue that this means supporting an increased ability of the Federal government to ban and censor political speech. Should the Federal government be able to ban more speech under political grounds? If you say "no" but also say we should "overturn Citizens United", please look into the actual case as this is exactly what it's about. To this day, people still are fooled into thinking that the Citizens United decision by the Supreme Court said "corporations are people" or "money is speech". It said nothing of the sort and nothing close to that. What the decision said was that John McCain and his co-sponsored McCain Fiengold Act was unconstitutional because it sought to ban certain political speech, specifically a film called 'Hillary'. That's it." -- Bruce Fenton

Shaun Jaramillo
Shaun Jaramillo

its supposed to be a government of the people for the people not a government of the corporations for the corporations

Zachary Frank
Zachary Frank

I am horrified by Bernie's tax plan but he is spot on in this. His focal point in the destruction of citizens united is enough to retain my vote.

Anatole Evans
Anatole Evans

Stand up to Hillary Clinton first!! Trump is next! About as fair and balanced as the Corporate media! Feel the Bern! The two party system has been playing the same game for forty years! The only ones benefiting and getting what they want is the one percent! Just a trending news story brought to you by repetition creates reality inc. Also brought to you by just ignore Bernie Sanders inc. Not all that different from how Bill Cosby handled these questions! Bill Clinton is just a much better liar! Check out the list of allegations and the number of women making them! I believe victims and I don't trust the Clintons! Bill Clinton and Bill Cosby used power, intimidation, and a persona larger than life to silence a lot of women! Just wrong! Rape was part of the allegations and money was paid out! How many women need to come forward before we believe them? Hillary Clinton is enabler and in chief!

Mike Tkach
Mike Tkach

And the Supreme Court judges who voted for it? Corporatist judges Scalia, Thomas, Alito, Roberts with flip flopping Kennedy. These mutts side with corporations not the people ala "Citizens United" farce along with other corporatist rulings.

Inspire Party of America
Inspire Party of America

Agreed. It is also a free speech issue, because one person's or one entity's right to free speech cannot harm or impede another's right to free speech, and we would argue that when one side is able to far outspend the other that is exactly what is happening. A truly equal and competitive contest for office based on ideas is not possible when one side can far outspend the other. At a minimum, just like in sports where there is a salary cap and revenue sharing, imagine if the same thing happened in politics. Victories in a level playing field mean far more anyway than if you can just simply outspend to win.

John C. Smith Jr.
John C. Smith Jr.

The Citizens United decision was about the worst decision to ever come out of a Supreme Court. Essentially it paves the way for special interests to exert the same if not more influence over election outcomes than that exerted by we the people. It is a terrible decision by an agenda driven court.

bob
bob

I've seen a lot of buzz about Hasen's new book. Nice job on the interview Andrew!

Mike C
Mike C

It's good to see that Hasen isn't taking the absolute stance that "money buys elections." As the book Freakonomics touched on, sometimes the casual relationship between money and electoral victory is reversed - often it's not that more money allows a candidate to win an election, but that a candidate who's favored to win is more likely to rack up donations and support. It's worth pointing out that the current frontrunner for the Republican presidential nomination has barely spent any money campaigning so far, while the candidate who has spent the most is lagging behind in fifth place.


But as Hasen pointed out, the corrupting influence of money might not be so direct. Candidates for all offices spend their campaign time listening to donors instead of listening to voters, and their votes while in office are often informed by whoever is bankrolling their re-election campaign.