A few weeks ago, the Supreme Court heard, for the second time, arguments in a case about campaign finance. Constitutional law expert and New York University law professor Samuel Issacharoff, a Roosevelt Institute Braintruster, explains why a case that is peripheral to the central regulation of campaign funding nonetheless has the potential to answer the big electoral question – Is money speech, and who is allowed to have how much of it?
“Hillary: The Movie” is a peculiar vehicle for a major challenge to federal campaign finance law. This is not the 30-second attack ad, forced into the nation’s living rooms by flush candidates. Rather, the movie is the product of Citizens United, a conservative ideological organization. It runs a full 90 minutes and comes only to the screens of those who pay for the privilege on pay-per-view. But because Citizens United received some money from corporations and wanted to broadcast during the campaign season, the movie arguably fell under statutory prohibitions on corporate money contributing to any election-related speech, regardless of the medium and regardless whether any candidate of political party had any involvement.
All of this could have been avoided. The Federal Election Commission (FEC) could easily have ruled some contributions de minimis – basically allowing exceptions for incidental sums of money – expecially where there was no evidence of coordination with any candidate. Or the commission could have expanded the grace the Constitution gives to ideological organizations, to relax the categorical prohibitions of receiving corporate or union money. Instead, Citizens United was granted no reprieve and, under statutory terms, would have faced criminal sanctions had the movie been broadcast. When pressed at the first hearing of the case last spring, the government ratcheted up the constitutional stakes by proclaiming that the same power to prohibit the circulation of a movie that received corporate funding would extend to banning books as well – the veritable third rail of First Amendment law. That claim at argument likely prompted the re-argument of the case last week – even though the government wisely abandoned its claim of such expansive power.
Of money, speech and previous Court precedents
It is possible that, despite the build up, the current case may fizzle into technical distinctions based on complicated statutory language under the McCain-Feingold law. Even so. there is no escaping that the constitutionality of campaign finance restrictions on corporations and unions is squarely teed up and will have to be confronted sooner or later. For 30 years, the constitutionality of campaign finance restrictions has turned on Buckley v. Valeo. Under Buckley, contributions could be restricted to eliminate even the appearance of corruption. But spending money for political communications was treated as being the heart of protected political speech. Time has not been kind to this distinction, as case after case collapsed the easy distinction between contributing money and spending it. Over the past decade, a majority of the Supreme Court has rejected this distinction, but the justices in turn divided between those who would allow bans of both contributions and expenditures and those who would protect both.
The government had a difficult choice to make in defending the prohibition on a movie that was to be shown only to those who would pay to see it. They could have argued, going back to the Austin v. Michigan Chamber of Commerce case from nearly 20 years ago, that the concentration of wealth in the hands of corporations and unions unfairly distorted the political marketplace of ideas. That argument was the underpinning of the only expenditure limitation the Court has upheld, and was invoked repeatedly in McConnell v. FEC, the 2004 case that upheld McCain-Feingold. In its briefs to the Court, however, the government walked away from that argument, essentially conceding that the idea of limiting the amount of speech from particular speakers was a constitutional nonstarter.
The result is that the constitutionality of the FEC’s prohibition on the “Hillary movie” turns on untested claims that corporations may be spending money in ways not endorsed by their shareholders. This is at best a thin reed, prompting repeated questions from the Court about its broad sweep into single proprietor corporations that also fall under the statutory ban.
The real issues in campaign finance law
To be fair, there are three real government concerns, none of which has much constitutional traction. First, the current system of campaign finance occupies too much of the time of our elected representatives, leaving them with too little time to tend to the nation’s affairs. Second, some people have too much money and candidates are improperly attentive to them. Third, the concentrations of wealth distort the nature of political discourse in this country. Each unfortunately pulls Congress into the business of deciding who should speak, and how much.
Ultimately, it is the concern over freedom of expression that has divided the camps in the campaign finance debates. For those who worry about government regulation of debate, campaign finance is the latest place where the state assumes the power to decide what ideas are and are not appropriate. For those concerned about the misuse of wealth and the compounding effects of inequality, the ability of the rich to command attention and the need of politicians to grovel for funds is a deep stain on our democracy. Each of these concerns animates one of the poles of the Court, but it is likely that the new justices will tip the Court toward a more skeptical outlook on any efforts at regulation.
At the same time, no one has figured out how to tame the money beast in politics. There has never been a national consensus to fund candidates, even for president, at a level that would free them from the need for private funds. When Congress first established the public funding option in the aftermath of Watergate, the public contribution was set at two-thirds the amount spent by George McGovern in 1972 – at the time, the single most unsuccessful presidential bid in American history. If the money is insufficient, and the need to spend continues, the result is money moving to the periphery of the system, away from the candidates and the parties. When politics starts to gravitate around 527 (tax- exempt) organizations, or the groups like Citizens United, we all lose. We can vote against candidates or parties that get money from disreputable sources. These other players float about the political system, oftentimes poisoning the debate, and are accountable to no one.
Samuel Issacharoff is the Reiss Professor of Constitutional Law at New York University School of Law.