3

CAMPAIGN FINANCE: FOLLOW THE MONEY

In 2011, one of America’s most powerful institutions laid siege to the Supreme Court. This was never a fair fight. The Court ranks among the most sacrosanct centers of influence in the United States. It has withstood confrontations with presidents, Congresses, and whole sections of the nation determined to defy it. And the Roberts Court justices are extremely smart and politically savvy. But they could bring only knives to what turned out to be an intensely public gunfight.

Stephen Colbert, more famous than any justice, had decided to use his national platform on Comedy Central’s The Colbert Report to make the Court look utterly absurd. Bound by traditions of decorum and unwilling to descend into unseemly brawls with critics, the justices endured one blow after another for months on end. Meanwhile, they could hit back against Colbert and his ilk only indirectly and occasionally in suitably high-minded public speeches.

Colbert focused his comedic wrath on the Roberts Court’s most controversial ruling to date: Citizens United v. Federal Election Commission.1 In that instantly famous case, the Court held that corporations and unions have a First Amendment right to spend as much money as they choose when advocating the election or defeat of political candidates, so long as they do not coordinate their advertising with the candidates’ campaigns. Citizens United provoked a storm of protest from Americans convinced that it would irreparably harm our political system.

Colbert’s comic genius and unparalleled flair for spectacle had received a gift in Citizens United’s assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Aided and abetted by Jon Stewart of The Daily Show, whose impeccable sense of irony has made him the leading source of news for a cynical generation, Colbert wreaked nightly havoc on national television. In an elaborate, deadly serious parody, Colbert staged a string of devious campaign stunts designed to prove the unbearable wrongness of Citizens United. His vision was clear: “Colbert Nation could have a voice, in the form of my voice, shouted through a megaphone made of cash.”2 For Colbert, it was all about the “American dream … that anyone, no matter who they are, if they are determined, if they are willing to work hard enough, someday they could grow up to create a legal entity which could then receive unlimited corporate funds, which could be used to influence our elections.”3

To realize that dream, Colbert hired Trevor Potter, a former chairman of the Federal Election Commission (FEC). Colbert and Potter spent much of 2011 arguing a single point: the Roberts Court had completely underestimated how easy it is for groups with corporate funds to covertly coordinate “independent” activities with candidates. This secret coordination, they implied, would make it stunningly simple for big money to corrupt and capture our officials. Casting himself as a Mr. Smith for our postmodern era, Colbert went to Washington and soberly testified before the FEC on behalf of his request to found a Super PAC4—a kind of political action committee that, thanks to Citizens United, can accept unlimited contributions from any source and spend them to support or oppose any candidate (so long as they don’t formally coordinate expenditures with candidates). After the FEC gave him the nod in June 2011, Colbert brightly explained to his fans that by “PAC,” he didn’t mean “political action committee”; what he had in mind was “plastic and/or cash.”5 In tune with the doublespeak conventions that govern such things, Colbert named his Super PAC Americans for a Better Tomorrow, Tomorrow, Inc.

Starting that fall, Colbert aired segments showing how anonymous millionaires were quietly funding Karl Rove’s secretive Super PAC, Crossroads GPS. Colbert explained how to manipulate disclosure rules, smirking as he declared that “I am opaque … yo’ motha’ gave me my money.”6 And, to prove that “shady, out of state group[s] whose intentions are not clear” can influence elections, he ran ads in the Iowa primaries that called on voters to support “Rick Parry,” not Texas Governor Rick Perry.7 “You can feel confident he’s not asking us to do that,” Colbert explained helpfully.

After actually outpolling several candidates in the South Carolina Republican primary, Colbert doubled down on this mad-eyed gambit by turning his Super PAC over to Stewart and exploring a presidential run.8 Presidential candidates can’t oversee their own Super PACs, but in reality the lines between independence and coordination are paper thin—yet another exploitable gap between optimistic law and dispiriting reality. As Politico reported, “Night after night, Stewart and Colbert have appeared together on one another’s shows, giggling and biting their knuckles about how they are ‘not coordinating’ even as they plot the next steps in Colbert’s not-yet-officially-announced campaign.”9 Colbert took every chance to explain that Mitt Romney, Newt Gingrich, and Rick Perry were all supported by Super PACs founded by their allies. By turning his Super PAC over to Stewart, Colbert was merely following conventional practice.

Not content to play a mere supporting role in this act, Stewart went rogue. He ran ads attacking “Mitt the Ripper,” recalling presidential candidate Mitt Romney’s claim on the stump that “corporations are people” and charging that “as head of Bain Capital, [Romney] bought companies, carved them up and got rid of what he couldn’t use.”10 He endorsed former Godfather Pizza Chairman Herman Cain even after Cain had withdrawn, explaining that Cain is “such a Washington outsider, he’s not even running for president.”11 And for the coup de grâce, he enlisted movie star Samuel Jackson to narrate an attack ad targeting Colbert.12

Priceless, one might say. One would be wrong. Colbert reported to the FEC in early 2012 that his Super PAC had raised $1,023,121.13

If this extended Colbert episode reveals the First Amendment at its best, many Americans seem to believe that Citizens United portrays it at its worst. To them, the case marked a turning point in our history, a deadly threat to America’s centuries-old experiment in democracy.

The truth, as usual, is more complicated. It’s easy to lose sight of the fact that Citizens United posed incredibly difficult questions about free speech, popular sovereignty, and political equality. Deciding when Congress can ban certain disfavored speakers from the marketplace of ideas or limit how much they can speak is no easy task. It certainly isn’t outlandish to conclude, as the Court did, that free speech rights must prevail over hard-to-document fears that corporate wealth will distort public discourse or corrupt politicians. Indeed, almost four years have passed since Citizens United was decided, and it has yet to rend the fabric of American life.

In an age of disenchantment with politics and stark economic inequality, Citizens United became a focal point for debates about the evaporation of faith in responsive government. This is understandable, but Citizens United simply cannot bear all that weight. Money in politics is only one part of our era’s story of corruption and dysfunction—and Citizens United, in turn, is only one part of the story of money in politics. The wealthy have always found ways to convert economic might into political power. The real question is what role government should be trusted to play in efforts to affect how and where money flows through the electoral system.

This perspective directs attention to the Roberts Court’s broader agenda of deregulating campaign finance. Five justices—Roberts, Scalia, Kennedy, Thomas, and Alito—have voiced grave doubts about the legitimacy of most efforts by government to dictate how money may be spent in elections. By reshaping the architecture of money, influence, and political organization, the Roberts Court is transforming how America conducts—and funds—politics.

*   *   *

On January 21, 2010, the justices took their seats and gazed solemnly out at their majestic courtroom. Chief Justice Roberts said simply, “In case 08-205, Citizens United versus the FEC, Justice Kennedy has the Opinion of the Court.” Kennedy then announced the majority’s holding. Within days, an astonished outcry against the Court echoed across the nation.

Its decision, though, came as no surprise to Court watchers. The case had arisen from efforts by Citizens United, a nonprofit corporation that accepted funds from for-profit corporations, to promote a documentary attacking Hillary Clinton, who was then seeking the Democratic presidential nomination. Citizens United wanted to distribute Hillary: The Movie through video-on-demand and promote it on TV, but federal law prohibited “electioneering communications” backed by corporate general treasury funds for thirty days before a primary election. When its lawsuit first reached the Court, Citizens United mainly argued that Hillary: The Movie wasn’t a prohibited electioneering communication because it didn’t expressly urge viewers to vote against Clinton. Several justices, though, seemed much more interested in broader questions about the government’s powers over campaign speech. Alito engineered a particularly devastating exchange in which a federal lawyer conceded that, under the government’s theory, Congress could even ban books about candidates for political office. Roberts followed up: “It’s a five-hundred-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Yes, the lawyer replied. A few months later, the Court ordered re-argument of the First Amendment issues.

Jeffrey Toobin, a journalist, has since revealed that Scalia, Kennedy, Thomas, and Alito were willing to decide the big constitutional questions right away.14 They saw no need for re-argument. Outraged by their willingness to rule on broader issues that Citizens United’s lawyers had barely raised, Justice David Souter drafted a biting dissent charging the majority with illegitimate activism. Roberts, who had originally voted for Citizens United on the narrow ground that its movie wasn’t an electioneering communication, worried that Souter’s dissent would badly dent the Court’s credibility. The re-argument was his ingenious suggestion: the more conservative justices knew they had already won, but a second hearing would nullify some of the most damaging of Souter’s accusations.

The Department of Justice wasn’t privy to these backstage maneuvers, but the order calling for re-argument was hardly a subtle message. Acknowledging the obvious importance of the case, then Solicitor General Elena Kagan personally re-argued it. In one of the twists of fate that occur with intriguing regularity at the Court, Citizens United afforded Kagan her first argument as solicitor general—and gave Sonia Sotomayor, who had since replaced Souter, her first major argument as a justice. (Sotomayor, however, already had a deep background in the subject from her time on New York’s Campaign Finance Board, where she forcefully warned against the danger of too much unsupervised money in politics.15) Kagan fought valiantly for what she surely knew to be a doomed cause. Urging her future colleagues to uphold a law plainly lacking five votes, Kagan all but conceded defeat. Angling for a narrow loss, she told the Chief, “As to whether the government has a preference as to the way in which it loses … the answer is yes.”

Kennedy wrote for the majority. Few topics inspire Kennedy more than the First Amendment, which enjoys a special place in his libertarian jurisprudence. In Citizens United, he composed an opinion extolling the value of unfettered expression. Warning against the perils of even well-intentioned government censorship, he invoked a wide range of free speech precedents to explain that core principles of liberty and democracy required protection of Citizens United.

Roberts wrote separately to explain why his vote in Citizens United was consistent with the values of judicial modesty, restraint, and unanimity that he has publicly championed. He argued that Kennedy’s result—which struck down a federal law and reversed two Supreme Court precedents—was both unavoidable and manifestly justified. In a show of solidarity with his fellow President George W. Bush appointee, Alito joined Roberts’s concurrence.

Scalia also wrote separately. He has long opposed the Court’s willingness to uphold campaign finance laws and reveled in the chance to destroy some nettlesome precedents.16 True to form, though, he thought the Court needed more than the soaring principles and precedents that formed the backbone of Kennedy’s opinion. It needed originalism. With a few centuries-old dictionaries in tow, Scalia composed a lengthy lesson in eighteenth-century history to explain “the conformity of today’s opinion with the original meaning of the First Amendment.”

Finally, Thomas suggested in his own opinion that the Court should go even further. Invoking the First Amendment right to anonymous speech, he argued that Congress had no power even to require public disclosure of campaign expenditures, a power that Kennedy’s majority expressly upheld. In Thomas’s view, the right to speak on political affairs encompasses the right to speak behind a veil of anonymity. After all, retaliation by the public and elected officials against unpopular speakers can chill First Amendment rights as surely as an outright ban. No other justice agreed with him, but it’s hardly unusual for Thomas to use his solitary writings to propose innovative conservative approaches to constitutional law.

Presented with four right-leaning opinions, the more liberal justices all rallied in dissent behind Justice John Paul Stevens, a moderate and in many ways apostate Republican whose appointment by Gerald Ford in 1975 seemed to many the finest achievement of that brief presidency. By 2010, the Court had moved so sharply to the right that Stevens, whose own views had moved only slightly to the left, found himself cast in the unexpected role of liberal hero.17 Fast approaching the end of his long and storied career on the Court, Stevens composed a ninety-page dissent that besieged every factual premise, procedural device, and legal argument in Citizens United. The final lines of this epic opinion foreshadowed the coming conflict: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

The rage that crackled beneath Stevens’s genteel prose erupted in raw form throughout the country. The White House immediately denounced Citizens United as “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”18 Wisconsin Senator Russ Feingold, the coauthor, with Arizona Senator John McCain, of the bipartisan federal law that Citizens United struck down, condemned this “terrible mistake.”19 Congress debated responsive legislation, and liberals started forging constitutional amendments that could negate Citizens United—efforts that quickly progressed toward implausible calls for a constitutional convention, the first since 1787.20

It was as though people were genuinely shocked by the sudden discovery that moneyed interests, including corporations, powerfully influence American politics. A Supreme Court ruling that could have provided a rare opportunity to debate long-simmering, systemic issues was instead portrayed as alarming news and treated as a whipping boy for all the flaws in contemporary politics. Perhaps this was inevitable in the context of a terrifying recession blamed by many on big banks, heated public debate over economic inequality, and a spike in populist anti-corporate sentiment. Opinion polls marked widespread hostility to the decision.21 Reformers channeled and stoked these energies. And when Colbert took up the cause, he struck comic gold.

The justices are not shrinking violets; hate mail and vicious op-eds come with the territory. The main rationale for entrusting a group of unelected, life-tenured judges with so much power is that they can stand up for the Constitution against heated political opposition. True to form, if any justices were surprised by the backlash to Citizens United, they withstood the vicious criticism of their handiwork with characteristic aplomb.

At times, though, the mask slipped. The biggest breakdown occurred at the 2010 State of the Union Address, six days after Citizens United was announced. In a tense moment almost without parallel in our history, the President criticized the justices as they sat arrayed in stony silence just feet away: “The Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”22 While his colleagues marshaled their willpower and remained still, Alito visibly mouthed, “Not true.” This silent objection was caught on camera and dissected in frame-by-frame detail. One year later, after a series of public speeches by justices in which they described the recurring awkwardness of attending State of the Union Addresses, Alito skipped the event altogether. Instead, he delivered a speech of his own entitled “Top Things You May Not Know About the U.S. Supreme Court” to a standing-room-only crowd at the Hawaii Supreme Court, far from the drama transpiring in D.C.23

The President’s high-profile critique of the Court and Alito’s reaction would have been enough to make Citizens United exceptional. But the justices also continued their debates in public, joined by retired colleagues. Discussing judicial elections, retired Justice Sandra Day O’Connor warned that “if both sides unleash their campaign spending monies without restrictions, then I think mutually assured destruction is the most likely outcome.”24 After retiring in June 2010, Stevens declared, “I think they made a serious mistake.”25 Justice Breyer echoed these remarks, warning that the people who “want to spend lots of money on a candidate” can “drown out the people who don’t have a lot of money.”26 This may sound timid next to the daily screaming matches we witness on TV, but for the justices, this sort of commentary is the rough equivalent of slamming down a gauntlet.

The Citizens United majority defended its position. Thomas argued in a public lecture that the fact of incorporation shouldn’t silence political speech: “If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak.”27 Why, he asked, should use of the corporate form suddenly strip away those rights? Scalia took a different tack in remarks to the South Carolina Bar Association, bluntly explaining, “I don’t care who is doing the speech. The more the merrier.… People are not stupid. If they don’t like it, they’ll shut it off.”28 Alito expressed his feelings about the debates over Citizens United when he lamented that judicial opinions are “reduced to a slogan that you put on a bumper sticker, and that’s very frustrating.”29 He added, “Campaign finance is very complicated, so it’s easy to get it wrong, and sometimes people get it wrong inadvertently.… We speak through our opinions [and] can’t engage in a back-and-forth with people.”

Alito was right. Campaign finance is complicated. And Citizens United is often deeply misunderstood. A closer look at the decision is in order, one that begins with a step back in time to another landmark precedent.

*   *   *

In the 1970s, Watergate sent Americans reeling. The scandal and its aftershocks revealed a dark rot of corruption at the core of our political system. In 1974, Gerald Ford signed the most far-reaching campaign finance reform law ever to emerge from Congress. As Congressman Bill Frenzel put it, “We couldn’t go back to the American people and tell them that we had no answer to the abuses that they had seen. This is our answer, and we have to make it work.” To some, campaign finance reform emerged as a beacon of light in one of our democracy’s darkest hours.30

Congress sought to foster a new culture of public integrity by creating public financing for presidential elections, expanding disclosure of donations, and limiting the flow of money. Specifically, Congress capped how much each candidate could spend overall, how much an individual could donate directly to candidates (“direct contributions”), and how much an individual could spend independently to support candidates (“independent expenditures”). These rules were meant to achieve Congress’s goal by regulating money donated and money spent.

New York Senator James Buckley, brother of the legendary conservative thinker William Buckley, would have none of it. He accused his peers of carelessly crafting a law that he dubbed “the Incumbent Protection Act of 1974.”31 Identifying a danger of campaign finance reform, Buckley predicted that the new rules would make it more difficult for challengers to raise enough money to unseat incumbent officeholders. Incumbents, he noted, often enjoy easy access to campaign funds and the substantial benefit of name recognition. Joined by 1968 anti-war presidential candidate Eugene McCarthy, Buckley sued to invalidate the new law. Although Buckley relied on the First Amendment free speech guarantee, one of his main concerns was electoral competition.32

In Buckley v. Valeo, the Court carved out an unstable middle ground.33 It upheld the public financing scheme, disclosure rules, and limits on direct contributions to campaigns. But it struck down the rules constraining the amounts campaigns could spend and the limits on independent expenditures for ads supporting or opposing candidates.

To explain why Congress could limit direct contributions but could not limit independent expenditures, the Court focused on the risk of corruption. Buckley reasoned that direct contributions create a serious risk of the reality or the appearance of quid pro quo corruption—as in I’ll give you $500,000 if you make me an ambassador. It concluded that independent expenditures, in contrast, pose no such risk: “The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”34

Buckley provides a crucial context for Citizens United. By asserting that independent expenditures do not cause corruption, Buckley forced the government to fight an uphill battle in explaining why corporate expenditures are different. Indeed, rightly understood, the real issue posed by Citizens United was not whether government efforts to limit corporate or union speech in elections raise serious First Amendment concerns: they clearly do. The real issue was what interests the government may legitimately advance to overcome those burdens on speech and how the Court should evaluate such arguments.

Buckley also made it harder to insist in 2010 that bans on corporate funds are an effective way to prevent a flood of corrupting expenditures. It did so by unleashing forces that caused a deluge long before Citizens United. When Buckley held that candidates have a right to spend as much as they want, while upholding limits on how much money they could accept, it destroyed the delicate balance Congress had sought to strike. As Yale Law Professor Heather Gerken put it, “The Supreme Court created a world in which politicians’ appetite for money would be limitless but their ability to get it would not. Two of my colleagues analogized it to giving fat, hungry politicians access to an all-you-can-eat financial buffet but insisting they can only serve themselves with a teaspoon.”35 The inevitable search for loopholes through which to funnel money to candidates, she added, turned campaign finance into a “regulatory equivalent of Whac-a-Mole.”

The regulators couldn’t keep up. By 2010, American politics was already awash in money, including corporate funds. Even before Citizens United, corporations and unions were allowed to spend money on election issues so long as they did not expressly encourage people to vote for or against a named candidate. They could also use their resources without limit in other ways, including lobbying legislators and regulators. Citizens United thus addressed a landscape in which the surviving loophole-ridden ban on electioneering communications by corporations was hard to justify as a uniquely effective bulwark against the potentially corrupting effects of money. That fox was already inside the henhouse.36

The thought of allowing limitless corporate expenditures nonetheless disturbed many observers—and had done so for a long time.37 In 1907, President Teddy Roosevelt presided over passage of the first law that banned corporate campaign contributions. In 1947, Congress prohibited even independent campaign expenditures by corporations and labor unions. After Buckley, Congress reaffirmed the position that corporations may not use general treasury funds to finance independent expenditures—a provision that Congress updated again in 2002. Time and again, our politicians had warned that corporate money does pose a singular danger, a conviction born of their considerable experience. But could this intuition translate into constitutional law?

Writing for the Court in 1990, Justice Thurgood Marshall, who had argued Brown v. Board of Education decades earlier, offered an influential argument for special limits on corporate speech.38 He invoked an interest in preventing corporations from using their unparalleled wealth to monopolize and distort political discourse. In 2003, a badly fractured Court relied in part on Marshall’s logic to uphold an updated federal campaign finance law.39

Marshall’s “anti-distortion” theory rested on a deep concern for political equality: in what sense are we really equal when corporations can use their wealth and legal advantages to exert extraordinary control over the marketplace of ideas?40 His argument resonated with an egalitarian school of American political theory that frowns on the translation of economic power into political influence.41 This thesis tends to be particularly attractive to those who start from the premise that the distribution and privileges of wealth are, themselves, products of our history and politics.42 Equality is hardly foreign to the First Amendment: the Court has long invoked egalitarian ideals to preserve public spaces for speech by those without substantial resources and to protect ideological dissidents.43 Drawing on these traditions, Marshall argued that we do not violate First Amendment rights by denying corporations, which have reaped the benefits of our social order, the chance to use their economic gains to benefit even more by distorting political discourse with their unparalleled wealth.44

This argument, though, stood in tension with a premise of modern First Amendment law: although government enjoys broad power to adjust our economic arrangements using such tools as progressive taxation, we should rarely trust it to decide outright whose views to amplify or muffle. Even if opportunities to engage in influential speech are unfairly distributed because of income inequalities, and even if government can directly redistribute wealth, the cure of allowing government to directly “adjust” the distribution of speech is worse than the disease. We are not a symphony for Congress to conduct according to its view of fair speech rights.

In Citizens United, Kennedy rejected Marshall’s anti-distortion defense of campaign finance laws. “The First Amendment,” he declared, “prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” This rule does not change “simply because the speaker is an association that has taken on the corporate form.” Just as the Court (sometimes) protects unpopular groups whose speech seems dangerous, so too must it protect corporations—another sometimes unpopular group—against charges that their speech is too harmful. Linking corporate speech to classic First Amendment safeguards, Kennedy warned that the “troubling assertion of brooding governmental power” to ban political books “cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.” Kennedy also noted that anti-distortion logic endangered our free press, since most media are corporate and it can be hard to define who counts as “the press.”45

Quoting Buckley, Kennedy then challenged Marshall’s account of political equality: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” If politicians could manipulate electoral speech by supposedly dangerous speakers, Kennedy observed, they might use that power to secure their own positions—hardly an equality-enhancing outcome. Further, given that wealthy corporations already have ample access to methods of political influence, Kennedy argued that Citizens United would benefit “smaller or nonprofit corporations [that] cannot raise a voice to object when other corporations, including those with vast wealth, are cooperating with the Government.” Finally, Kennedy rejected the claim that there is something uniquely illegitimate about corporations using their funds to speak—or about translating wealth into political speech: “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.”

Kennedy concluded his opinion by turning from speakers to listeners, drawing on a tradition that protects our right to hear political messages and “judge what is true and what is false.” Even if corporations have no independent right to speak, he argued, the public has a right to hear their ideas. As Kennedy explained it, “When Government seeks to use its full power … to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.”

Citizens United decisively rejected the anti-distortion justification for campaign finance laws. In truth, though, the anti-distortion view had already lost many adherents since the early 1990s; not even Kagan or Stevens made much use of it in Citizens United.46 This is likely for the best. To be sure, money can powerfully advantage a speaker in the marketplace of ideas (though so can celebrity, beauty, and intelligence). And concentrated wealth, left unregulated, can create a risk that most headlines and TV ads will be controlled by a small group (though the Internet has broken down some monetary barriers to influential speech). Still, it would be a mistake to leave judgments about the “proper” distribution of speech to politicians. Arming them with a roving license to level the playing field by silencing or adjusting the volume of disfavored speakers is an invitation to self-serving behavior and, ultimately, tyranny. The anti-distortion argument can too easily lead down this dangerous path, and Citizens United rightly discarded it.

*   *   *

In preparing for argument, Kagan knew that an anti-distortion approach would not sway the Roberts Court. Instead, she relied mainly on the well-established government interest in preventing corruption. Protection of political integrity, she reasoned, justifies a limited burden on union and corporate free speech rights. This argument has considerable intuitive appeal, and it captures what many Americans perceive to be the essential wrongness of the Court’s ruling. But even though he agreed that an anti-corruption interest may sometimes justify campaign finance rules, Kennedy rejected Kagan’s argument. His analysis of what corruption means for First Amendment purposes is the most important legacy of Citizens United.47

Corruption, Kennedy wrote, consists only of quid pro quo deals, in which someone spends money in exchange for a particular favor from a politician. It does not include “influence over or access to elected officials” or anything equally expansive. With this narrow definition in place, Kennedy concluded that independent expenditures—which by definition are not coordinated with candidates—“do not give rise to corruption or the appearance of corruption.” As a result, the limit on expenditures by unions and corporations could not stand.

As commentators immediately pointed out, Kennedy’s account of “corruption” as a basis for justifying campaign finance laws is hardly self-evident. To many, the Court’s narrow focus on quid pro quo deals—and its insistence that a supposed lack of coordination prevents any corruption by independent expenditures—is simply mistaken. Lobbyists and politicians can read the writing on the wall. If a politician strongly suspects that a donor will spend a lot of money to buy helpful ads if he votes a certain way, a subtler form of corruption may come into play.

This is a world of winks, nods, and systemic influence.48 When campaigns are expensive, lobbyists seem ubiquitous, and a small number of well-known donors provide a major portion of the funding, politicians and their staff can grow more dependent on these “special interests” than on their own voting constituents. A shift in priorities may sometimes occur subconsciously, as politicians start anticipating how a select number of wealthy purchasers of independent ads will react to their decisions. Such capture is all the more likely when “independent” groups are run by former advisers to candidates and share staff members, media contacts, and even offices with their favored campaigns. As Colbert’s fiendishly clever barbs demonstrated, independence in the real world bears only a passing resemblance to independence in Citizens United, a widely recognized fact that has undercut public faith in responsive governance.

Building off that concern, Harvard Law Professor Lawrence Lessig has argued that the Court should accept prevention of this sort of “dependence corruption” as a justification for campaign finance laws. As he explains, our entire constitutional system rests on the premise that representatives will depend for their election and reelection on “We the People.” But when representatives depend on those who fund their campaigns and political projects instead of on their constituents, popular sovereignty is threatened or altogether lost. In Lessig’s view, the Constitution thus allows Congress to regulate corporate speech to protect the Republic.49

A separate critique of Citizens United, although one whose empirical foundations have been called into question by recent scholarship,50 emphasizes that even the appearance of corruption can undermine democracy. In this view, when ordinary people, confronted by a world of special interests, lose faith that their voices and votes really matter, our democracy is imperiled. Citizens may lose respect for decisions made by elected officials and thus either decline to participate in government or take part halfheartedly, triggering a breakdown of our political system. Further, as New York University Law School Professor Adam Samaha has explained, the appearance of corruption can actually create corruption: if corrupt behavior seems acceptable, lobbyists will feel pressure to compete in the perceived market for special treatment.51

Many critics of Citizens United deploy these kinds of arguments, invoking more sophisticated accounts of corruption than mere quid pro quo deals as a justification for limits on independent expenditures by unions and corporations. There is great force to some of their objections, but that is not the end of the discussion. Citizens United was a hard case because the Court faced a choice among evils. Attacks on the opinion emphasize inequality and corruption, values that the Court did not fully acknowledge, but critics too often disregard the other side of the equation, which includes weighty free speech and democratic concerns. To be sure, the Court enters treacherous waters when it sets about defining corruption, an undertaking that requires it to make controversial assumptions about how our democracy ought to work when uncorrupted. And there may be wisdom to leaving many decisions about our democratic order to the public and its representatives. The Constitution, though, requires judges to play a role in reconciling competing values and ensuring that those representatives respect certain ground rules—and in modern constitutional law, they do so by defining the anti-corruption interest.52

Kennedy tacitly acknowledged that some might consider his definition of corruption artificially narrow. Tipping his hat to the opposing view, he allowed that “if elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.” He went on to explain, though, that the First Amendment constrains how far we can let these concerns carry us as justifications for limiting speech. “It is our law and our tradition,” he wrote, “that more speech, not less, is the governing rule.” Before the Court allows Congress to pick a class of speakers and strip down their rights, it needs an unusually compelling justification.

Here, Kennedy alluded to the fact that broad accounts of the anti-corruption interest pose significant difficulties of their own. For one thing, he pointed out, it’s hard to identify boundaries on the laws that a “generic favoritism or influence theory” can justify. After all, “it is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies.” Allowing Congress to silence speakers whenever some think the game is rigged could blast a hole in the First Amendment. While empirical evidence might, in theory, help establish some limits, disputes over the relevant facts and how to interpret them have kept this debate anchored mostly in speculation.

In addition, it’s extremely hard to determine whether any given campaign finance rule has a big enough impact to survive judicial scrutiny. Judges have long implemented the First Amendment by requiring—among other things—that restrictions on speech demonstrably achieve a legitimate goal. The causes of political corruption in America and the reasons why politicians act the way they do, however, are many and complex. Money in politics is only one part of that story, which also includes minimally regulated lobbying, incumbent-protective gerrymandering, a revolving door between government and private industry, and a breakdown of civility in political culture. In turn, the rules governing expenditures by unions and corporations are only one part of the story of money in politics, which also includes direct contributions, lobbying, and a dizzying array of loopholes. As Kennedy noted, billionaires, unincorporated associations, and the corporate news media were already free to spend vast sums before Citizens United. This makes a constitutional difference because, to pass muster under the First Amendment, a campaign finance law must prevent enough corruption to justify its burden on speech—and must not constrain more speech than is necessary to achieve that goal. Citizens United suggests judicial skepticism of efforts by Congress to single out speakers, blame them for corrupting our politics, and muffle their voices.

This skepticism may flow, in part, from fear that anti-corruption arguments sometimes bleed into anti-distortion concerns. Many attacks on Citizens United highlight its potential to give corporations undue influence in the marketplace of ideas and skew policy outcomes in government. “Corruption,” in this view, occurs when politicians become dependent on a wealthy clique and government is no longer responsive to the public interest. As Rick Hasen, a professor at the University of California, Irvine School of Law, observes, some arguments of this type can be characterized as political equality arguments; they seek “to justify campaign finance laws on grounds that the laws distribute political power fairly and correct a distortion present in an unregulated (or less regulated) system.”53 Kennedy and his colleagues are unreservedly hostile to such arguments. They worry that noble-sounding rationales for campaign finance laws can too easily conceal efforts by incumbents to protect themselves and punish their enemies.

The Citizens United majority did not adopt a narrow definition of corruption because it is naïve or apathetic. It did so because it doubts that the Court can otherwise create workable First Amendment law that adequately guards against abuse by politicians. Embracing a broader view of the anti-corruption interest risked creating an exception that swallowed the rule. Kennedy’s libertarian streak and devotion to the First Amendment as a safeguard against tyranny shone through in his opinion, which put a heavy thumb on the scale in favor of allowing too much “dangerous” speech in the face of outright government censorship.

This is a powerful argument, though it is certainly reasonable to disagree with the Court’s suggestion that it would be impossible or improvident to establish a middle-ground position. If a majority of the justices thought the Court had invoked anti-corruption reasoning to uphold too many campaign finance laws in the past, they might instead have used Citizens United to make a modest course correction. Such an approach would have left more room for politicians to use campaign finance laws, carefully reviewed by courts, as one tool among many in their efforts to restore public confidence in government integrity. Instead, the Court issued a wide-ranging ruling that stands as an imposing and—for now, at least—insuperable obstacle to most campaign finance regulations. Unsurprisingly, its decision remains hotly disputed.

In an age of political dysfunction, the extraordinary sums of money that candidates avidly pursue present hard questions about how to reconcile competing national values. Citizens United made clear that a majority of the Roberts Court is prepared to come down firmly on one side of that balance. As a result, even as the issue of money in politics looms ever larger in American life, the First Amendment as interpreted by the Roberts Court will prohibit most efforts—by the public and by politicians—to seek reform through campaign finance laws.

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Many reactions to Citizens United mixed prophecies of doom with urgent calls for reform. Meaningful democracy has come to an end, pundits insisted; corporations must be stripped of their rights, and money must not be equated to speech. Speculation about the ruling’s implications fueled proposals to “fix” the Court’s alleged error. In time, however, it became clear that the most gloomy of these predictions fell wide of the mark. Although Citizens United’s effects are still rippling outward, early assessments suggest a more nuanced picture.

One of the main implications of Citizens United was the blessing of Super PACs in SpeechNow.org v. FEC.54 This case was brought by SpeechNow.org, a nonprofit group that uses independent expenditures to promote candidates who favor free speech. SpeechNow.org had been told by the FEC that it had to register as a PAC, which meant that it could receive no more than $5,000 annually from any given donor, even corporate donors. SpeechNow.org objected to this limit and filed suit. Invoking Citizens United, the U.S. Court of Appeals for the D.C. Circuit agreed and struck down the regulation. As Chief Judge David Sentelle observed, “The Court held that the government has no anti-corruption interest in limiting independent expenditures.… Given this analysis from Citizens United, we must conclude that the government has no anti-corruption interest in limiting contributions to an independent expenditure group such as SpeechNow.” SpeechNow.org encouraged the rise of Super PACs as a vehicle for the aggregation of independent expenditures, since these groups can raise unlimited sums of money from individual, corporate, and union donors. The FEC ultimately codified SpeechNow.org and sanctioned Super PACs.

In short order, the Super PACs that followed close on Citizens United’s heels were joined by groups organized under sections 501(c)(4) and 501(c)(6) of the tax code, which govern not-for-profit corporations. Because of Citizens United, these groups can accept huge contributions from corporations and then allocate those sums to independent expenditures. They also have the added virtue—in donors’ eyes—of secrecy. Whereas the sources of monies donated to Super PACS are generally revealed pursuant to FEC regulations, the 501(c) entities are usually not compelled to provide information about donors. They have thus become key actors in the rise of secretive election funding, often called “dark money.” Although Citizens United allowed disclosure rules, it didn’t mandate them, and neither did the preexisting law governing 501(c) entities. As a result, one of the most striking features of the post–Citizens United landscape is a lack of transparency. Even as vast sums pour into the system from new sources, it can be nearly impossible for the public to determine who is spending money to influence votes.55

Together, Super PACs and 501(c) groups have transformed political fund-raising and thereby affected the organization of our electoral politics. As outside groups become more attractive to major donors, the political parties and individual campaigns have been forced to adapt. Their new relationships take many forms. Sometimes there is extensive informal coordination between outside groups and the political parties, a state of affairs facilitated by significant personnel overlap. These arrangements present their own tensions, but they often mirror familiar party structures. As Gerken notes, their principal oddity is that the outside groups are usually staffed mainly by experienced political operatives—a group that is a world away from the party faithful, who have traditionally supplied a “bridge between the elites and the voter, between the party and the people,” as well as “an institutional check on the bargains that the elites can strike, some brake on how many principles will get compromised along the way.”56

In other cases, though, outsiders wielding independent funds have clashed with each other and with the establishment. Even after the party elite coalesced around Mitt Romney, for example, the 2012 Republican primaries turned into a shooting gallery of rogue billionaires.57 As party leaders watched in horror, the establishment’s chosen son was pummeled by ferocious attack ads in a longer primary season than anyone had anticipated, partly because figures like billionaire Sheldon Adelson helped keep Newt Gingrich’s campaign alive far past its expected expiration date. This pattern is likely to repeat itself in the years ahead, as ideological factions within each party jockey for control of the ticket—a trend witnessed most recently in an open conflict between Republican incumbents and Tea Party challengers. Experiences like this may lead parties to seek laws to help them control the outside groups that have become both vital and potentially fatal to their agendas. Those laws, in turn, may raise new constitutional concerns.

The questions that loomed largest after Citizens United focused on how it would affect electoral outcomes and policy choices. These concerns were justified, but they were often overstated. When the Court announced its holding, for instance, many liberals openly worried that big corporations would use their newfound “liberty” to buy the 2012 election for Republicans. That fear proved unfounded: even though roughly 70 percent of all disclosed outside spending came from conservative groups, Mitt Romney lost the presidential race and Republicans fared poorly overall—even the candidates backed by outside interests.58 Sheldon Adelson, for example, gave more than $53 million to Super PACs, but all eight of the candidates he supported lost.59 Karl Rove, a strategic mastermind who won fame advising George W. Bush, oversaw groups that spent $175 million and still lost twenty-one out of thirty elections.60 Seemingly overnight, claims of potential corporate domination were replaced with dismissive shrugs. Robert Schlesinger of U.S. News & World Report went so far as to suggest that Super PACS are a “giant waste of money.”61 Supporters of Citizens United, meanwhile, claimed vindication. Allen Dickerson of the Center for Competitive Politics concluded that “the major takeaway is that voters are still sovereign.”62

The truth is somewhere in the middle: if critics of Citizens United were unduly worried about its effects before the 2012 elections, pundits were too quick to deem it irrelevant after Election Day. Of course, to the extent the point was ever in doubt, the 2012 elections proved that winning takes more than an edge in independent expenditures. But while money can’t guarantee a candidate victory, a serious absence of money may guarantee defeat or force a candidate to change positions to attract support. This is particularly true in hard-fought, close elections, as well as in lower-profile state and local elections where a big infusion of cash from national groups can flatten a smaller donor base. Further, using a single election as a test might obscure important effects of Citizens United: as Rove was quick to note, the flood of Super PAC money in 2012 may have helped thwart steeper Republican losses.63 By broadening and altering the channels of campaign finance, Citizens United has almost certainly affected some electoral outcomes.64

Apart from any effects on particular elections, Citizens United has likely also affected some policy outcomes by causing an across-the-board realignment of government priorities toward interests backed by big money.65 Favoritism and access may not constitute corruption as the Court defines it, but they undoubtedly influence policy. Every capable politician has an eye on the next election and a keen sense of who provided support last time, who didn’t, who might be persuaded to shift their opinions, and how that might be achieved. Citizens United and the changes it triggered have bolstered this economy of money and influence. As politicians and their staffers spend more time on the fund-raising trail wooing a select number of donors, and as legislators make decisions in the shadow of predictable reactions by key outside groups, it’s hard to imagine that their policies won’t be affected. Given the ease with which lawmakers can reward donors at little personal cost—details left out of a draft, bills killed in committee, small favors tucked into laws—the temptation to attract funds by currying favor will be ever present.

The relatively small audience of major donors contributes to the probability that Citizens United will ultimately affect outcomes. The Center for Public Integrity points out that just three GOP-aligned groups accounted for nearly one-third of all disclosed outside spending in the 2012 national election, and that more than half of all disclosed outside spending was controlled by ten groups.66 Of the roughly $859 million total raised by Super PACs during that election, more than $505 million came from only 159 donors, each of whom donated at least $1 million.67 In a study by Demos, the contrast is stark: whereas the two presidential candidates raised a total of $313 million from more than 3.7 million small donors giving less than $200 each, Super PACs exceeded that amount with donations from just 32 big donors (who gave an average of $9.9 million each).68 The landscape of Super PACs and 501(c) groups is still in flux, but one key fact is holding constant: a small group of entities has control over a lot of money. And politicians want that money, badly.

Citizens United is therefore likely to trigger a self-reinforcing cycle. It has unleashed forces that will cause politicians, parties, and donors to organize relationships around groups like Super PACs and 501(c) entities. As that happens, and as the group of victorious candidates comes to consist mainly of politicians who can successfully navigate these new structures and depend on them for reelection, the impetus for change among officeholders will fade. Barack Obama’s 2012 campaign provides just one example: although it signaled opposition in June 2011 to any involvement with Super PACs, his campaign later embraced a Super PAC called Priorities USA Action, which ultimately spent more than $65 million in support of his reelection.69 Since then, Obama’s once-outspoken opposition to Citizens United has grown awfully faint. As Citizens United becomes part of the accepted background, the question will be how to improve the world it has helped bring about, not how to restore a past that is quickly receding.

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This doesn’t mean that critics of Citizens United should just pack up and call it a day, but it does suggest that reformers concerned with money in politics should focus on the path ahead. Since 2010, however, many critics have either called for a return to the past or detoured into unproductive channels.

Some of the ruling’s critics, for example, have aimed to change the Court’s mind. The main push on this front occurred in early 2012, after the Montana Supreme Court defied Citizens United on the ground that Montana’s sordid political history required recognition of a broader anti-corruption interest.70 When the Court put Montana’s ruling on hold, Ginsburg and Breyer wrote separately to suggest that an appeal could “give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”71 The two justices added that events since Citizens United “make it exceedingly difficult to maintain that independent expenditures … do not give rise to corruption or the appearance of corruption.”

Accepting this invitation, legislators, states, citizens’ groups, and former FEC officials flooded the Court with briefs urging a step back from Citizens United. These briefs, citing examples that supposedly proved corruption by independent expenditures, transformed the dispute into an unmistakable test of the majority’s conviction. Would the majority abandon its statement of First Amendment principle in the face of a political and judicial backlash?

Not a chance. Fashioning ice-cold prose into a clear message, the Citizens United majority reversed Montana’s highest court in a single paragraph without even hearing argument. Breyer dissented, joined by Ginsburg, Sotomayor, and Kagan. This was a fortunate turn of events for critics of Citizens United: the majority could have used the Montana case to expand on its holding. Barring a change in the Court’s membership, additional attempts to persuade the Court to reconsider Citizens United are likely to meet similar ends.72

Channeling a populist impulse echoed in the Occupy Wall Street movement, many critics of Citizens United have also attacked the rule that says corporations enjoy First Amendment rights.73 At first glance, corporate personhood may seem like a tempting target. As Senator Elizabeth Warren proclaimed to thunderous applause at the 2012 Democratic National Convention, “Corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love, and they die. And that matters. That matters because we don’t run this country for corporations, we run it for people.”74 In a witty protest of Citizens United’s treatment of corporations, Angela Vogel of Seattle married one.75 Her stunt nicely complemented Jon Stewart’s biting observation on The Daily Show that “corporations now have more rights than gay people” because “corporations can merge—gay people can’t.”76

Nonetheless, this focus on the inhumanity of corporations is misguided. As Harvard Law Professor Mark Tushnet notes, although constitutional rights belong to people, courts have long recognized that “corporations are one of the ways the law allows people to organize themselves to accomplish what they want.”77 Corporations don’t always have the same status as natural persons, of course. In a case about access to government records, for instance, Roberts held that a rule about “invasion of personal privacy” does not cover corporations, cunningly adding, “We trust that AT&T will not take it personally.”78 But it does make sense for corporations, as associations of individuals, to enjoy certain constitutional rights, including the right to speak about public issues that may control the outcome of their ventures.

A successful assault on corporate personhood, moreover, would fail to address many concerns raised by Citizens United.79 Even though the Court dealt with corporate and union speech, it has since become clear that such organizations aren’t entirely (or even mostly) to blame for the recent spike in disclosed outside spending. That honor belongs to super-rich individuals, who were free to spend money long before 2010 but who benefited from the post–Citizens United transformation in campaign finance law. Large businesses, after all, tend to be cautious. As one election lawyer observed, “If you’ve got a bank on every corner, if you’ve got stores in every strip mall, you don’t want to be associated with a social cause.”80 The national retailer Target learned this lesson the hard way in 2010, when it contributed to a group opposing same-sex marriage and was pummeled by consumers in a national backlash. Not surprisingly, then, corporations have mostly stuck to less risky forms of political influence—such as lobbying—and avoided significant participation in the post–Citizens United campaign finance system.

Many of the ruling’s opponents also suggest that we should amend the Constitution to state that spending money does not qualify as “speech” under the First Amendment. True, money isn’t speech. But it often costs money to speak effectively to more than just a few people at once, and allowing government to control who can spend enough to get heard on a grander scale would render freedom of speech illusory. Imagine a world in which people are free to talk and sing and write and publish—but only if they spend no money and charge nothing for their efforts. Acutely aware of how absurd that world would be, the Court has rightly decided lots of cases that protect people’s rights to use their money to reach the broader public.

To the extent they are concerned with combating various kinds of corruption in our political system, critics of Citizens United would be well served to move past issues like corporate personhood and money’s status as speech. Instead, they might aim to ensure greater transparency in our brave new world of Super PACs and 501(c) organizations.

Disclosure has long been a cornerstone of campaign finance law.81 As Buckley recognized, disclosure informs voters about the interests to which candidates may be most responsive. It also “allows voters to place each candidate in the political spectrum more precisely than is often possible on the basis of party labels and campaign speeches.” Moreover, by exposing funds to public view, disclosure can deter all kinds of corruption. Citizens United reaffirmed that “the public has an interest in knowing who is speaking about a candidate shortly before an election.” As Kennedy noted, “Prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.” He added, “Transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Under both Buckley and Citizens United, these interests usually outweigh burdens on campaign speech.

Because other anti-corruption rules have been invalidated and our political system is rife with dark money, disclosure is now more important than ever. Billionaires and corporations secretly funneling massive expenditures through opaque 501(c) entities is an invitation to shady dealing, loss of public faith in politics, and unresolvable skepticism about the sources of political speech. In the post–Citizens United era, transparency would provide at least a measure of reassurance; as Justice Louis D. Brandeis wrote in 1913, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”82 And transparency would provide those benefits at relatively low cost. Unlike many other rules, disclosure requirements avoid limits on how and when people can spend money. Instead, as former Stanford Law Dean Kathleen Sullivan observes, they enable “the distribution of political influence to be treated as a political rather than a constitutional question.”83 They do so by placing “the question of undue influence or preferential access in the hands of voters, who, aided by the institutional press, can follow the money and hold representatives accountable for any trails they don’t like.”

Recently, however, disclosure rules have come under constitutional attack by groups eager to keep their political activity private.84 These groups argue that compelled disclosure can result in retaliation that chills speech—especially in the Internet age, as even low-level donors may find themselves lambasted online or plugged into searchable maps.85 Opponents of disclosure often cite examples from the same-sex marriage struggle. In Citizens United, for instance, Thomas argued that he would strike down disclosure rules governing corporate and union independent expenditures, pointing to a backlash in California against supporters of a measure to end recognition of same-sex marriages. “I cannot endorse a view of the First Amendment,” he wrote, “that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech.”

A similar issue reached the Court in Doe v. Reed, decided mere months after Citizens United.86 Doe arose from efforts in Washington State to overturn a law extending benefits to same-sex couples. A group called Protect Marriage Washington circulated a petition and successfully collected enough signatures to force a referendum. Several groups then invoked Washington public records laws to request copies of that petition—and two of them publicly stated their intent to post signatories’ names online, in searchable format. Alarmed, the petition sponsor and several signers filed suit under the First Amendment.

By a vote of eight to one, the Court held in an opinion by Roberts that disclosure of such petitions does not, in general, violate the First Amendment. It then sent the case down for further proceedings. Roberts instructed the lower court to determine if the sponsors and signers could show “a reasonable probability that the compelled disclosure of personal information will subject them to threats, harassment, or reprisals from either Government officials or private parties.” If they could make that showing, he stated, they could avoid disclosure.87

Consistent with his position in Citizens United, Thomas dissented and warned that Washington’s public records law “severely burdens [First Amendment] rights and chills citizen participation in the referendum process.” Alito seemed sympathetic to Thomas’s view and wrote separately to signal his belief that the signers’ rights to “privacy of belief and association” must be protected. But Thomas and Alito stood alone: in a rare display, Breyer, Sotomayor, Stevens, and Scalia each wrote separately to cast doubt on the asserted grounds for evading disclosure. Scalia, in particular, took direct aim at Thomas and Alito: “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” A democracy stripped of public scrutiny and the accountability of criticism, Scalia added, “does not resemble the Home of the Brave.”

This Court’s apparent belief in the constitutionality of disclosure rules, however, only means that such laws are likely to be upheld. For that to happen, they must first be legislated into existence: the First Amendment allows campaign finance disclosure rules, but it does not impose any. For national elections, this leaves the ball in Congress’s court, which does not bode well for disclosure reform. Congress has twice tried to pass a law called the DISCLOSE Act, but those efforts collapsed in partisan acrimony in 2010 and then again in 2012.88 The more recent DISCLOSE Act would have required corporations to report funds spent on campaign-related activity, identify themselves in ads, and notify shareholders of political spending. Opponents attacked the bill on several grounds, charging that it unfairly exempted certain special interests, imposed onerous reporting requirements on political speech, and subjected donors to harassment. Their view ultimately carried the day; the law failed to overcome a filibuster after the Senate split along purely partisan lines (with Democrats in favor, Republicans opposed). This does not mean, though, that disclosure reform is forever off the table. To those concerned by Citizens United, disclosure is likely to remain the most promising and realistic reform option.

Finally, Citizens United has also prompted attention to the corporate law rules that define when and how corporations can “speak,” leading some to call for reform in this field.89 A model for such changes would be unions. The Court has ruled that the First Amendment, which protects people against forced political speech and association, bans unions from spending any part of an employee’s dues on politics if that employee objects. Thus, unions cannot force employees to financially support a political cause as a condition of employment; employees must be allowed to opt out of such activity. The Roberts Court reaffirmed—and expanded—this rule as recently as 2012.90

In contrast, corporations can spend huge sums of general treasury funds on political speech without seeking shareholder approval. The Court sees no First Amendment problem here because shareholders are always free to sell their stock and walk away. But Harvard Law Professor Ben Sachs rightly asks whether it makes sense, as a matter of constitutional law and public policy, to force shareholders to choose between making profitable investments and avoiding support for certain messages.91 In buying a share of stock, should we have to accept a company’s anti-gay or pro-choice political contributions along with its huge profit margins? Building on classic work by Harvard Law Professor Victor Brudney, who suggested in 1981 that corporate law should be modified to require shareholder approval of political spending,92 Sachs makes an interesting case for allowing shareholders to opt out of such politics or for requiring majority shareholder approval of political expenditures. These proposals lack political support and would likely face crippling opposition from corporate directors with sway in key state legislatures, but they direct attention to important issues in shareholder rights in the wake of Citizens United.

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Although often described as a bolt from the blue, Citizens United is part of a significant line of Roberts Court campaign finance cases. Several of these rulings—involving public funding of campaigns, contributions by foreigners, and judicial elections—provide valuable context to Citizens United by filling out this Court’s vision of democratic politics.

A year after Citizens United, the Court returned to the fray in a case that addressed yet another pillar of campaign finance law: public funding. By providing candidates with public money to run their campaigns, these programs aim to keep politics clean by reducing dependence on wealthy donors and improving transparency.93

Thirty-five years earlier, in Buckley, the Court upheld a modest federal financing scheme for major-party presidential candidates. It explained that reliance on public money can “reduce the deleterious influence of large corporations on our political process,” “facilitate communication by candidates with the electorate,” and “free candidates from the rigors of fundraising.” The Court concluded that “public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest.”

In 1998, after suffering a wave of corruption scandals involving its governor, many of its legislators, and both of its U.S. senators, Arizona took the Court at its word—and added a twist to traditional public financing programs. Its Clean Citizens Elections Act awarded participating candidates a substantial lump sum of public money. In exchange, candidates promised not to fund their campaigns through private contributions, not to exceed a statutory limit on personal funds, and to return all unused public funds. For each dollar above the initial grant spent by a nonparticipating opponent or by an outside group supporting such an opponent, a participating candidate received an additional ninety-four cents. Arizona thus sought to ensure that candidates who received public funds were not later outspent by wealthy opponents and their supporters, an approach that encouraged use of the system and thereby helped secure the recognized benefits of public funding.

In Arizona Free Enterprise Club v. Bennett, decided in 2011, the Court struck down the act in an opinion described by Gerken as a “doctrinal death match between two incompatible world views.”94 Roberts wrote for a five-justice conservative majority; Kagan wrote for the more liberal dissenters. Their opinions spared no quarter. The Chief Justice and his most junior colleague battled over every premise and precedent, spicing their opinions with uncharacteristic sarcasm. To the Chief’s warning that “in a democracy, campaigning for office is not a game,” Kagan replied, “Arizonans deserve a government that represents and serves them all … truly, democracy is not a game.” To the Chief’s claim that Arizona might discourage speech by giving money to a speaker’s opponent, Kagan pointed out that those candidates “could have received (but chose to spurn) the same financial assistance.” She added: “Some people might call that chutzpah.” Summing up her view, Kagan remarked that “if an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct.” In the shadow of Citizens United, such hostility was understandable: the Court saw Bennett as yet another battle in the struggle over democracy and the First Amendment.

As his opinion made clear, Roberts saw a law that discouraged speech by imposing a harsh choice on privately funded candidates: either keep expenditures below a certain amount or trigger a flood of state funds to your rival. Worse, such candidates sometimes couldn’t even prevent that distribution of additional state funds, since outside groups beyond their control might spend above the cap. This burden on speech—punishing each dollar spent with aid to the enemy—required weighty justification, something more than a forbidden effort to level the playing field. But Arizona lacked any such justification, since its law did little to thwart corruption. As Roberts explained, “The fact that burdening constitutionally protected speech might indirectly serve the State’s anticorruption interest, by encouraging candidates to take public financing, does not establish the constitutionality of the matching funds provision.” In his view, the harm to speech outweighed any remote benefits of making public funding desirable.

Kagan, in contrast, saw an admirable law that enhanced First Amendment values by encouraging more political speech, not less. She also saw an attack by opportunists who had spurned the state’s financial assistance and now sought to silence public debate: “Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response.” In her forceful, plainspoken dissent, Kagan assailed the majority for confining Arizona to the same laws that had failed so miserably to prevent corruption in the past. In her view, this creative state program had restored integrity to elections. “Except in a world gone topsy-turvy,” Kagan observed, “additional campaign speech and electoral competition is not a First Amendment injury.” Arizona’s triggering mechanism, in turn, made sense as a “Goldilocks solution.” Because it was hard to guess in advance how much money to give candidates but vital to give enough for publicly funded candidates to remain competitive, Arizona provided them with a lump sum and evened out the difference mid-campaign. Since the state was free simply to start with a higher lump sum, Kagan saw little virtue in punishing Arizona for fine-tuning its contributions this way.

In Bennett, the Roberts Court foreclosed a promising approach to public funding. Its ruling forced a number of cities and states to reconsider their campaign finance laws, and triggered heated debate over the future of public finance.95 Although the Chief Justice insisted that his ruling did not address the constitutionality of all public financing schemes, some commentators saw dark omens. As Duke Law Professor Guy-Uriel Charles wrote, “A significant purpose of a public finance system is to subsidize candidates who opt into that system to compete with candidates who did not opt in. [Bennett] raises doubts about that very purpose.”96 Little wonder, then, that the Chief and Kagan broke out their heavy rhetoric: in a single stroke, Bennett invalidated one of the country’s more effective public finance systems and called into question a potentially significant path toward campaign finance reform.

One year after Bennett, the Court addressed an important question raised by Citizens United: can foreign corporations spend money on American elections? Obama had expressed concern about this issue in his 2010 State of the Union Address; Alito mouthed the words “Not true” in apparent response to that comment. Yet, as Justice Stevens has observed, Citizens United signals hostility to laws that regulate speech based on the speaker’s identity, whether that of a natural person or a wealthy corporation.97 And the Court has long emphasized that the First Amendment protects more than just speakers: it protects speech and all those whom it might reach. The logic of this argument seems unassailable, but if taken seriously, it suggests that we should not deny citizens access to political ideas that happen to be expressed by noncitizens.

In the end, the Court essentially ducked the issue. A lower court upheld federal rules that limit campaign expenditures by noncitizens, explaining that we “may exclude foreign citizens from activities that are part of democratic self-government in the United States.”98 The question, of course, is what “activities” meet that definition. Voting clearly does, for example, but the law specifically excluded speech by foreigners, which might be thought to pose a harder question if a speaker’s identity can’t usually justify a ban on speech.99 The Court never weighed in on this dilemma with an opinion of its own; instead, it simply affirmed the lower court’s ruling.100

A case that suggests just a bit of leeway in Citizens United arose from judicial elections.101 In 2007, Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia cast the deciding vote to overturn a $50 million verdict against Massey Coal Company. He was in a position to vote for Massey Coal because he had been elected in 2004, after the verdict but before the appeal. In that election, Don Blankenship, the CEO of Massey Coal, donated $1,000 to Benjamin’s campaign. Blankenship then spent $2.5 million on a PAC called And for the Sake of the Kids, which aggressively supported Benjamin. On top of this, he spent $500,000 on independent expenditures, including direct mailings, TV ads, and newspaper promotions. This $3 million of independent expenditures topped the total amount spent by all other Benjamin supporters combined. Benjamin ultimately beat his opponent 53 percent to 47 percent, but two years later he refused to recuse himself from the appeal of the $50 million verdict against Massey Coal, insisting that, notwithstanding Blankenship’s expenditures, he was not biased.

In Caperton v. A. T. Massey Coal Co., split five to four, the Court reversed West Virginia’s Supreme Court of Appeals. Writing for the majority, Kennedy explained that “there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” The unacceptable risk of such bias in Caperton, Kennedy held, triggered a violation of the right to a fair trial. To avoid a flood of challenges to every ruling by an elected judge, he then emphasized that Caperton truly was an extraordinary case.

Caperton suggests that massive independent expenditures can, in some cases, help create the appearance—and perhaps the reality—of quid pro quo corruption: my money for your vote. In that respect, it varied slightly from the firm rule of Citizens United. This helps explain why Roberts and Scalia both published forceful dissents. While the Court is clearly in no hurry to expand the logic at the heart of Caperton, the case provides an important counterpoint to Citizens United and may someday be invoked to limit that opinion’s strongest claims.102

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For now, however, the Roberts Court stands at a crossroads. Whereas the Court once allowed Congress some latitude to limit speech by invoking a broad anti-corruption interest, the twilight of that era is upon us. In the First Amendment’s name, a five-justice majority is handing down opinions that foreclose most efforts to regulate campaign finance. These justices firmly trust voters to sort out their beliefs in the marketplace of ideas and fear that politicians will censor speech to rig the electoral game in their favor. The more liberal justices have protested at every turn, arguing that politicians must be given room to protect government integrity, but to no avail. Unless the Court’s membership changes, the vision of free speech and democratic politics embodied in Citizens United will hold steady at the Roberts Court, moving us ever closer to a world in which government is stripped of nearly all power over money in politics.