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.
[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.
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.Hasen identifies three ways that money harms American democracy: in terms of electoral outcomes, legislative influence, and public confidence.
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,” he writes.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'
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.”