Citizens united and the illusion of coherence

Michigan Law Review

Volumn 109, Issue 4, 2011, Pages 581-623

  Hasen, Richard L ^a  

^a LOYOLA LAW SCHOOL   (United States)

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EID: 78651500036     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (336)

1. 130 S. Ct. 876 (2010). Justice Kennedy wrote a majority opinion for five Justices on the question of the constitutionality of limits on spending by corporations to influence candidate elections. Chief Justice Roberts, joined by Justice Alito, wrote a concurring opinion. Justice Scalia, joined by Justices Alito and Thomas, wrote a second concurring opinion. Justice Kennedy spoke for eight Justices (all except Justice Thomas) in upholding various campaign finance disclosure requirements. Unless otherwise indicated, references to the views of the "majority" of the Court in this Article refer to the five-Justice majority on the corporate spending issue, not the eight-Justice majority on the disclosure issue.
2. See, e.g., id. at 917
3. ("The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it." (quoting McConnell v. FEC, 540 U.S. 93, 341 (2003) (Kennedy, J., concurring in the judgment in part and dissenting in part)));
4. id. at 908 ("The First Amendment confirms the freedom to think for ourselves.")
5. id. at 917 (Roberts, C.J., concurring) ("[Under the government's position,] First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.")
6. id. at 929 (Scalia, J., concurring) ("Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.").
7. 494 U.S. 652, 654-55 (1990).
8. 540 U.S. 93, 126, 207 (2003).
9. See, e.g., Citizens United, 130 S. Ct. at 907 (calling Austin's rationale an "aberration" inconsistent with other Court precedent);
10. id. at 903 ("The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker's corporate identity and a post-Austin line that permits them."); id. at 913 ("We return to the principle established in Buckley and Bellotti")
11. id. at 921 (Roberts, C.J., concurring) ("[Austin] was an 'aberration' insofar as it departed from the robust protections we had granted political speech in our earlier cases."); id. ("Austin undermined the careful line that Buckley drew. [and] was also inconsistent with Bellotti[]"); id. ("Abrogating the errant precedent might better preserve the law's coherence").
12. But see id. at 948 (Stevens, J., concurring in part and dissenting in part) ("A third fulcrum of the Court's opinion is the idea that Austin and McConnell are radical outliers, 'aberration[s],' in our First Amendment tradition. The Court has it exactly backwards. It is today's holding that is the radical departure from what had been settled First Amendment law.") (citations omitted). Justice Stevens used the term "outlier" five times in his dissenting opinion in describing the majority's view of Austin.
13. 424 U.S. 1 (1976) (per curiam).
14. For a contrary viewpoint on Austin's status, see Citizens United, 130 S. Ct. at 948 (Stevens, J., concurring in part and dissenting in part) and
15. Adam Winkler, McConnell v. FEC, Corporate Political Speech, and the Legacy of the Segregated Fund Cases, 3 Election L.J. 361 (2004).
16. Citizens United, 130 S. Ct. at 909.
17. McConnell v. FEC, 540 U.S. 93, 152 (2003).
18. Citizens United, 130 S. Ct. at 910.
19. E.g., id. at 905 ("[T]he First Amendment generally prohibits the suppression of political speech based on the speaker's identity.")
20. id. at 902 ("[T]he Government cannot restrict political speech based on the speaker's corporate identity."); id. at 930 (Stevens, J., concurring in part and dissenting in part) ("The basic premise underlying the Court's ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker's identity, including its 'identity' as a corporation.").
21. See infra notes 92-98 and accompanying text.
22. 129 S. Ct. 2252 (2009).
23. See Citizens United, 130 S. Ct. at 910 (purporting to distinguish Caperton);
24. id. at 967
25. (Stevens, J., concurring in part and dissenting in part) (arguing that Caperton is indistinguishable).
26. See supra note 5.
27. See infra notes 246-247 and accompanying text.
28. I have canvassed this area before in some of my earlier writings. For my most recent analysis of this area,
29. see Richard L. Hasen, Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minn. L. Rev. 1064 (2008) [hereinafter Hasen, Beyond Incoherence]
30. Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance By the Roberts Court, 2009 Sup. Ct. Rev. 181 [hereinafter Hasen, Avoidance]
31. Richard L. Hasen, What the Court Did-and Why, The Am. Int., July/Aug. 2010, at 49.
32. 424 U.S. 1 (1976) (per curiam).
33. Richard L. Hasen, The Untold Drafting History of Buckley v. Valeo, 2 Election L.J. 241, 241 (2003).
34. See Buckley, 424 U.S. at 28-29.
35. Id. at 47. The Court continued, "Rather than preventing the circumvention of the contribution limitations [the federal law limiting individual independent expenditures] severely restricts all independent advocacy despite its substantially diminished potential for abuse." Id. It then noted that "the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption."
36. Id. at 47-48.
37. Id. at 48-49.
38. Id. at 19-20, 44-51.
39. For example, Justice O'Connor changed her position on the constitutionality of spending limits imposed on corporations three times while on the Court.
40. See Daniel Hays Lowenstein, et al., Election Law: Cases and Materials 843, 852 (4th ed. 2008).
41. Buckley, 424 U.S. at 35, 44.
42. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 299-300 (1981) ("Whatever may be the state interest. in regulating and limiting contributions to or expenditures of a candidate[,] there is no significant state or public interest in curtailing debate and discussion of a ballot measure.").
43. 528 U.S. 377, 382-83, 397-98 (2000).
44. See Shrink Mo., 528 U.S. at 382, 395-97.
45. 548 U.S. 230, 262 (2006).
46. 128 S. Ct. 2759, 2773 (2008).
47. 435 U.S. 765, 767-70, 795 (1978).
48. Bellotti, 435 U.S. at 788 n.26 ("[O]ur consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.").
49. 479 U.S. 238, 241, 263 (1986).
50. 494 U.S. 652, 654-55, 668-69 (1990).
51. Id. at 660.
52. Richard L. Hasen, The Supreme Court and Election Law 111-14 (2003).
53. 539 U.S. 146 (2003).
54. Beaumont, 539 U.S. at 161 n.8 (citations omitted).
55. Bipartisan Campaign Reform Act of 2002 § 101, 2 U.S.C. § 441i(a) (2000 & Supp. V 2005).
56. U.S.C. § 441b (2006).
57. See McConnell v. FEC, 540 U.S. 93, 126 (2003).
58. See Buckley v. Valeo, 424 U.S. 1, 43 n.51 (1976) (per curiam).
59. McConnell, 540 U.S. at 126-27.
60. 2 U.S.C. § 434(f)(1).
61. Id. § 441b(b)(2). The Court later interpreted § 203 so as not to apply to MCFL corporations. McConnell, 540 U.S. at 210-11.
62. 540 U.S. at 207-09.
63. McConnell, 540 U.S. at 206. By an 8-1 vote, the Court also upheld BCRA §§ 201 and 311 against a facial challenge.
64. Id. at 201-02, 231.
65. Id. at 206;
66. see also Richard L. Hasen, Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U. Pa. L. Rev. 31, 56-57 (2004) [hereinafter Hasen, Buckley is Dead] (discussing McConnell's treatment of unions)
67. Richard L. Hasen, Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Alb. Gov't L. Rev. 169, 191-92 (2008) [hereinafter Hasen, Justice Souter] (discussing Justice Souter's treatment of labor unions in his dissent in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)).
68. 546 U.S. 410, 412 (2006) (per curiam).
69. 551 U.S. 449, 482 (2007).
70. WRTL II, 551 U.S. at 483-504 (Scalia, J., concurring in part and concurring in the judgment). Justice Scalia was quite critical of the limited nature of the controlling opinion, calling it "faux judicial restraint" that was "judicial obfuscation." Id. at 498 n.7.
71. Id. at 454-82 (principal opinion).
72. Id. at 469-70.
73. Id. at 470, 480-81.
74. See Hasen, Beyond Incoherence, supra note 17, at 1096. Because the Court in Citizens United mooted application of the WRTL II "no reasonable interpretation" test before it was used in a few elections, we do not know definitively how it would have worked in practice as construed by the courts and the FEC.
75. Matthew Mosk, Citizens United v. the FEC: The Return of Corporate Influence Peddling?, ABC News (Jan. 13, 2010), http://abcnews.go.com/Blotter/citizens-united-fec-returncorporate-influe nce-peddling/story?id=9545153&page=1. Both cases were litigated by Jim Bopp. Ted Olson took over as Citizens United's lawyer when the Supreme Court agreed to hear the case.
76. Citizens United v. FEC, 130 S. Ct. 876, 887 (2010). By taking some for-profit corporate money, the corporation appeared ineligible for the MCFL exemption.
77. Citizens United v. FEC, 530 F. Supp. 2d 274, 276 n.4 (D.D.C. 2008) (three-judge court) (per curiam) (television advertisement quoting Dick Morris from the movie stating that "Hillary is the closest thing we have in America to a European socialist").
78. Brief for Appellee, No. 08-205, Citizens United, 130 S. Ct. 876, available at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-205_Appellee .pdf. Citizens United also wanted to broadcast some ten-second and thirty-second advertisements promoting the documentary without complying with some BCRA disclosure provisions, including § 201 (requiring disclosure of funders) and § 311 (requiring the "disclaimer" stating who paid for the advertisement and that it was not approved by any candidate or committee).
79. Citizens United, 130 S. Ct. at 929 (Stevens, J., concurring in part and dissenting in part) ("Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets.").
80. See Bipartisan Campaign Reform Act of 2002 § 403, 2 U.S.C. § 437(h) (2000 & Supp. V 2005); 28 U.S.C. § 2284 (2000).
81. Citizens United, 530 F. Supp. 2d at 275. It also sought to bar enforcement of BCRA §§ 201's and 311's disclosure requirements as to the advertisements.
82. Id. at 277.
83. Id. at 275.
84. Id. at 279-80. As to the advertisements, the district court held that the WRTL II exemption did not apply to the disclosure rules, relying on language in McConnell broadly upholding these requirements.
85. Id. at 281.
86. Citizens United v. FEC, 552 U.S. 1278 (2008).
87. Citizens United v. FEC, No. 07-2240, 2008 WL 2788753, at *1 (D.D.C. July 18, 2008) (three-judge court).
88. Citizens United v. FEC, 552 U.S. 1240 (2008).
89. Brief for Appellant at 26 n.2, Citizens United v. FEC, 130 S. Ct. 876 (2010) (No. 08- 205), available at http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-205_Appellan t.pdf.
90. Id. at 30 ("Austin was wrongly decided and should be overruled.").
91. Transcript of Oral Argument, Citizens United, 130 S. Ct. 876 (2010) (No. 08-205), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-205.p df.
92. Adam Liptak, Justices Consider Interplay Between First Amendment and Campaign Finance Laws, N.Y. Times, Mar. 25, 2009, at A16, http://query.nytimes.com/gst/fullpage.html?res=9A07E5D8113EF936A15750C0A 96F9C8B63 ("Several of the court's more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authority to limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.").
93. Citizens United v. FEC, 129 S. Ct. 2893 (2009) (parallel citations omitted).
94. Transcript of Oral Reargument, Citizens United, 130 S. Ct. 876 (2010) (No. 08-205), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-205% 5BReargued%5D.pdf.
95. Justice Kennedy wrote the majority opinion on the corporate spending limits question for himself, Chief Justice Roberts, and Justices Alito, Scalia, and Thomas. Citizens United, 130 S. Ct. at 886-917. All those Justices besides Justice Thomas, as well as all the Justices dissenting on the spending limits issue, concurred with Part IV of Kennedy's opinion upholding Citizen United's challenges against the BCRA disclosure provisions.
96. Id. at 913-16. Chief Justice Roberts wrote a concurrence for himself and Justice Alito, addressing arguments related to constitutional avoidance and stare decisis.
97. Id. at 917-25 (Roberts, C.J., concurring). Justice Scalia, joined by Justice Alito and in part by Justice Thomas, wrote a concurring opinion addressing arguments as to the original understanding of the First Amendment.
98. Id. at 925-29 (Scalia, J., concurring). Justice Stevens, for himself and Justices Breyer, Ginsburg, and Sotomayor, dissented on the spending limits question.
99. Id. at 929-79 (Stevens, J., concurring in part and dissenting in part). 80. The Court first rejected the nonconstitutional argument that video-on-demand cable broadcasts, or at least this instance of their use, were not covered by the FEC regulation or underlying statute.
100. Id. at 888-89. The majority also rejected the related argument that the corporate spending limit "should be invalidated as applied to movies shown through video-on-demand [on grounds] that this delivery system has a lower risk of distorting the political process than do television ads."
101. Id. at 890. Such an approach "would raise questions as to the courts' own lawful authority [a]nd in all events, those differentiations might soon prove to be irrelevant or outdated by technologies that are in rapid flux." Id. Moreover, the Court found such an approach in violation of the First Amendment because "[t]he interpretive process itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable."
102. Id. at 891. The Court then quickly rejected the argument that the documentary was not the "functional equivalent of express advocacy" under the WRTL II exemption: "The movie, in essence, is a featurelength negative advertisement that urges viewers to vote against Senator Clinton for President."
103. Id. at 890. One of the great ironies here, unacknowledged by the Court, is the ease with which the Court was able to apply Chief Justice Roberts's controlling WRTL II test of functional equivalence, despite skepticism expressed by Justices Kennedy, Scalia, and Thomas in WRTL II that the test was too vague to be applied: There is a fundamental and inescapable problem with all of these various tests. Each of them (and every other test that is tied to the public perception, or a court's perception, of the import, the intent, or the effect of the ad) is impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights of the large segment of society to which § 203 applies.
104. Citizens United, 130 S. Ct. at 891. While acknowledging that "the Court should construe statutes as necessary to avoid constitutional questions, the series of steps suggested would be difficult to take in view of the language of the statute."
105. Id. at 892. The Court declined "to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned, especially" because the Court was convinced that "this corporation has a constitutional right to speak on this subject." Id. The Court then launched into an extensive discussion as to why the Court was going to strike down the statute "facially" (that is, unconstitutional for all corporations- and presumably labor unions) rather than "as applied" (that is, unconstitutional just for Citizens United and similar groups).
106. Id. at 892-96.
107. Id. at 897.
108. Id.; see also id. at 897-98 (describing PAC regulations).
109. Id. at 898.
110. Id. (citation omitted).
111. Id. at 899. The Court distinguished cases in which speech would "interfere with governmental functions," id., such as rules limiting the rights of government employees to participate in elections.
112. Id. at 899-903.
113. Id. at 903 ("The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker's corporate identity and a post- Austin line that permits them.").
114. Id. at 888.
115. Id. At the time the government filed its supplemental brief, I noted the government's surprising failure to defend the Austin antidistortion rationale, and to recast it as an interest in shareholder protection.
116. Rick Hasen, The Government's Remarkable Supplemental Brief in Citizens United: No Mention of Corporate "Distortion," Election L. Blog (July 27, 2009, 9:37 AM), http://electionlawblog.org/archives/014156.html. The question of whether this was a strategic error reemerged when Solicitor General Kagan, who argued the second argument in Citizens United, was nominated to be a Justice of the Supreme Court.
117. Adam Liptak, Stints in Court May Yield Clues to a Style, N.Y. Times, Apr. 15, 2010, at A1, available at http://www.nytimes.com/2010/04/15/us/politics/15scotus.html
118. see also Robert Barnes, In Elena Kagan's work as solicitor general, few clues to her views, Wash. Post, May 13, 2010, at A03, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/05/12/AR201005 1205049.html
119. Jess Bravin, Kagan and Key Case: The Jury Is Out, Wall St. J., May 12, 2010, http://online.wsj.com/article/SB1000142405274870356580457523869160413578 2.html
120. Adam Liptak, On Speech, Kagan Leaned Toward Conservatives, N.Y. Times, May 16, 2010, at A19, available at http://www.nytimes.com/2010/05/16/us/politics/16court.html.
121. Citizens United, 130 S. Ct. at 904.
122. Id. at 905.
123. Id. (quoting Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990)).
124. Id. Among other arguments, the Court stated that: [E]ven assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment.
125. Id. at 906. The Court further stated that such a view has "no support" as the First Amendment was "originally understood." Id.
126. Id. at 906-07.
127. See id. at 907.
128. Id. at 908.
129. Id. at 909. The Court stated that the Bellotti footnote was "supported only by a law review student comment, which misinterpreted Buckley." Id.
130. 459 U.S. 197 (1982).
131. Citizens United, 130 S. Ct. at 909 (quoting NRWC, 459 U.S. at 559-60).
132. Id. (citations omitted). The Court further explained that "Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny." Id. Moreover, the Court, in explaining Buckley's holding that contribution limitations could be imposed to prevent quid pro quo corruption, explained that "restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. The Buckley Court nevertheless sustained limits on direct contributions in order to ensure against the reality or appearance of corruption."
133. Id. at 908 (citations omitted).
134. Id. at 909.
135. McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concurring in the judgment in part and dissenting in part).
136. Citizens United, 130 S. Ct. at 910.
137. Id. (quoting McConnell, 540 U.S. at 297 (Kennedy, J., concurring in the judgment in part and dissenting in part)).
138. Id. (citations omitted)
139. Id. at 911. The Court did not explain why elected officials could succumb to improper influences from independent expenditures if such expenditures have no potential to corrupt.
140. See supra note 92.
141. Citizens United, 130 S. Ct. at 911.
142. Id. For an argument that Congress or state legislatures should pass new rules limiting corporate political spending without shareholder approval,
143. see Lucian A. Bebchuk & Robert J. Jackson, Jr., Corporate Political Speech: Who Decides?, 124 Harv. L. Rev. 83 (2010).
144. Citizens United, 130 S. Ct. at 911.
145. Id. at 912.
146. Id. at 913.
147. Id. at 913-16.
148. Id. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam)).
149. Id. The Court rejected the arguments that disclosure was unjustified for commercial advertisements (e.g., advertising the movie), that the disclosure law was underinclusive because it did not cover print or media advertising, and that the disclosure law could be limited to ads which are the functional equivalent of direct advocacy. On this latter point, the Court stated, "Even if the ads only pertain to a commercial transaction, the public has an interest in knowing who is speaking about a candidate shortly before an election."
150. Id. at 915. The Court's statement that "the informational interest alone is sufficient to justify application of § 201 to these ads,"
151. id. at 915-16, and its approval of disclosure requirements applied to lobbying activities, id. at 915, together mean the Court is likely to uphold a variety of broad disclosure provisions against constitutional challenge.
152. Id. at 916. The Court reiterated the centrality of as-applied challenges in dealing with the threat of harassment in Doe v. Reed, 130 S. Ct. 2811 (2010), a case it decided later in 2010.
153. The Chief Justice's opinion is the more important one for the purposes of this Article. Justice Scalia's concurrence addressed itself to the "original understanding" of the First Amendment, Citizens United, 130 S. Ct. at 925 (Scalia, J., concurring), taking strong issue with the dissent's claim that the Framers of the Constitution would have approved of corporate spending limits in candidate elections, id. at 925-29.
154. 129 S. Ct. 2504 (2009).
155. Citizens United, 130 S. Ct. at 918 (Roberts, C.J., concurring).
156. Id. at 919.
157. Id. at 919-20.
158. Id. at 920; see also id. ("[A]s the dissent points out, the Court generally does not consider
159. constitutional arguments that have not properly been raised." (citation omitted)).
160. Id. at 921.
161. Id. at 922.
162. Id. at 923. Like the majority, the Chief Justice stressed the application of Austin to media corporations. Id.
163. Id. The Chief Justice explained that the Austin majority opinion relied on neither the threat of quid pro quo corruption nor the need for shareholder protection. Id. at 924.
164. I focus here solely on Justice Stevens's dissent. Justice Thomas dissented for himself alone on the constitutionality of the disclosure and disclaimer provisions. Id. at 979-82 (Thomas, J., concurring in part and dissenting in part). Consistent with his views in earlier cases,
165. see Richard L. Hasen, Justice Thomas: leading the way to campaign-finance deregulation, First Amendment Center (Oct. 8, 2007), http://www.firstamendmentcenter.org/analysis.aspx?id=18958, Justice Thomas stated that the First Amendment contains a right to anonymous speech that cannot be overcome by a government interest in providing information to the electorate, particularly given the potential chill on First Amendment activity caused by disclosure of campaign-related speech over the internet. Citizens United, 130 S. Ct. at 981-82 (Thomas, J., concurring in part and dissenting in part). He made the same points in Doe v. Reed later in the term. 130 S. Ct. 2811, 2844-47 (2010) (Thomas, J., dissenting).
166. The opinion runs fifty pages in the Supreme Court Reporter. Justice Stevens even apologized for the length of the dissent: "I regret the length of what follows, but the importance and novelty of the Court's opinion require a full response." Citizens United, 130 S. Ct. at 931 (Stevens, J., concurring in part and dissenting in part).
167. On the first point, Justice Stevens argued that the issue of overruling Austin was not properly before the Court, because a facial challenge was abandoned in the lower court and the issue was not presented in the jurisdictional statement to the Court.
168. Id. at 931-32. "Our colleagues' suggestion that 'we are asked to reconsider Austin and, in effect, McConnell,' would be more accurate if rephrased to state that 'we have asked ourselves' to consider those cases."
169. Id. at 931 (citation omitted). He then argued that the case should have been adjudicated as an as-applied, rather than facial, challenge,
170. id. at 933-36, noting that the facial challenge allowed the Court to adjudicate the issues in the case, including the question whether the spending limits were justified on anticorruption grounds, without giving the government the opportunity to develop evidence on the question in the lower courts,
171. id. at 933.
172. Justice Stevens then discussed three ways the Court could have decided the case on narrower grounds: that video-on-demand is not covered by § 203, id. at 937; that the MCFL exemption should be expanded to cover nonprofit corporations that take a de minimis amount of money from corporations, id.; and that Citizens United's feature length film "look[ed] so unlike the types of electoral advocacy Congress has found deserving of regulation" that the group was entitled to an as-applied constitutional exemption, id. at 938.
173. On this point, Justice Stevens disagreed with the majority's assertions that Austin was poorly reasoned and that it was undermined by experience. On the latter point, the dissent stated that "[t]he majority has no empirical evidence with which to substantiate the claim."
174. Id. at 939. Federal, state, and local governments relied on Austin in crafting their campaign finance laws, id. at 940, and the Court's contrary ruling "makes a hash" out of the BCRA's regulatory scheme, weakening parties by strengthening outside groups, id.
175. Id. at 938 n.16. Chief Justice Roberts called the dissent's views of these narrower grounds "quite perplexing" because the dissenters "presumably agree[] with the majority that Citizens United's narrower statutory and constitutional arguments lack merit-otherwise its conclusion that the group should lose this case would make no sense." Id. at 918 (Roberts, C.J., concurring). The dissent responded that there is "nothing perplexing about the matter" because the dissenters "do not share [the majority's] view of the First Amendment" and therefore there is no occasion "to practice constitutional avoidance or to vindicate Citizens United's as-applied challenge." Id. at 938 n.16 (Stevens, J., concurring in part and dissenting in part). One might add that the dissent likely wanted to avoid the political optics of a 9-0 defeat for the government (albeit on vastly different grounds), recalling the majority's controversial statement in Bush v. Gore that "[s]even Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. The only disagreement is as to the remedy." 531 U.S. 98, 111 (2000) (per curiam) (citations omitted).
176. Citizens United, 130 S. Ct. at 942 (Stevens, J., concurring in part and dissenting in part).
177. Id. at 944.
178. Id. at 943;
179. see also id. at 976 (discussing the role of the press and media exemption). Justice Stevens added that "with a media corporation there is also a lesser risk that investors will not understand, learn about, or support the advocacy messages that the corporation disseminates."
180. Id. At 943 n.32. He also stated that the majority "[r]oam[ed] far afield from the case at hand" by worrying "that the government will use § 203 to ban books, pamphlets, and blogs." Id. at 943 n.31.
181. Id. at 946-48. "Campaign finance distinctions based on corporate identity tend to be less worrisome because the 'speakers' are not natural persons, much less members of our political community, and the governmental interests are of the highest order."
182. Id. at 947.
183. Id. at 948-52.
184. Id. at 952-56.
185. Id. at 956-57.
186. Id. at 958. In Austin, the Court "expressly ruled that the compelling interest supporting Michigan's statute was not [the equalization rationale] but rather the need to confront the distinctive corrupting potential of corporate electoral advocacy financed by general treasury dollars." Id. (citation omitted).
187. Id. at 959 ("A referendum cannot owe a political debt to a corporation, seek to curry favor with a corporation, or fear the corporation's retaliation.").
188. Id. at 961. Justice Stevens discussed the evidence found by the district court in the McConnell case that members of Congress were grateful for independent negative advertisements run with corporate and labor union money. Further, groups running these ads received special consideration from grateful officials when matters arose that affected these corporations and organizations.
189. Id. at 961-62 (citing McConnell v. FEC, 251 F. Supp. 2d 176, 623-24 (D.D.C. 2003)). He also added that even if ingratiation and access are not corruption, "they are necessary prerequisites to it; they can create both the opportunity for, and the appearance of, quid pro quo arrangements."
190. Id. at 965.
191. Id. at 964 ("[I]ndependent advocacy. does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions" (quoting Buckley v. Valeo, 424 U.S. 1, 46 (1976) (per curiam))). Despite stating that the majority seemed to decide this issue with finality and without any empirical evidence, the dissent suggested that a new version of § 203 might be "supported by additional evidence of quid pro quo corruption or its appearance."
192. Id. at 978 n.76.
193. Id. at 965;
194. see also id. ("Business corporations must engage the political process in instrumental terms if they are to maximize shareholder value. The unparalleled resources, professional lobbyists, and single-minded focus they bring to this effort make quid pro quo corruption and its appearance inherently more likely when they (or their conduits or trade groups) spend unrestricted sums on elections.").
195. Id. at 967-68.
196. Id. at 968-70.
197. Id. at 971 n.69.
198. Id. at 970;
199. see also id. at 971 n.69 (disagreeing with the Chief Justice that there is "nothing more to it" than equality).
200. Id. at 970.
201. Id. at 970-72.
202. Id. at 973.
203. Id. at 974.
204. Id.; see also id. at 975-76 ("In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener's exposure to relevant viewpoints, and it may diminish citizens' willingness and capacity to participate in the democratic process.").
205. Id. at 975. The dissent stated that corporations are "uniquely equipped" to engage in this "rent seeking." See id.
206. Id. at 977 (internal quotation marks omitted).
207. Id. at 979.
208. Bill Araiza, writing before the Court's Citizens United decision, nicely situates the case in the context of disputes over the economic marketplace.
209. See William D. Araiza, Campaign Finance Regulation: the Resilience of the American Model, 2 Amsterdam L. F. 55 (2009), available at http://ojs.ubvu.vu.nl/alf/article/view/108.
210. Before the Court decided Citizens United, but after the Court set it for reargument, I wrote a law review article contrasting the Court's use of avoidance in NAMUDNO with its failure to do so in Citizens United.
211. See Hasen, Avoidance, supra note 17. Justice Stevens in his dissent also noted the contrast in the Court's treatment of avoidance in the two cases.
212. See Citizens United, 130 S. Ct. at 938 n.16 (Stevens, J., concurring in part and dissenting in part) (calling the statutory arguments in Citizens United "at least as strong" as those accepted by the Court in NAMUDNO).
213. One issue is the majority's discussion of the Press Clause. See Eugene Volokh, State Attorneys General Argue that Non-Media Speakers Should Get Less First Amendment Protection than Media Speakers, The Volokh Conspiracy (June 1, 2010 2:21 PM), http://volokh.com/2010/06/01/state-attorneys-general-argue-that-non-medi a-speakers-should-get-less-first-amendment-protectionthan-media-speakers (arguing that Citizens United rejects special protections for institutional press).
214. See The DISCLOSURE Act: Hearing on H.R. 5175 Before the Commm. on H. Admin., 111th Cong. (2010) (statement of Professor John C. Coates IV, John F. Cogan, Jr. Professor of Law and Economics, Harvard Law School), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604567
215. Bebchuk & Jackson, supra note 117
216. Reuven S. Avi-Yonah, To Be or Not to Be? Citizens United and the Corporate Form (Univ. of Mich. Law Sch. Law & Econ. Research Paper Series, Paper No. 10-005, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1546087
217. Anne Tucker Nees, Politicizing Corporations: A Corporate Law Analysis of Corporate Personhood and First Amendment Rights after Citizens United (Jan. 27, 2010) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542063.
218. See Miriam Galston, When Statutory Regimes Collide: Will Wisconsin Right to Life and Citizens United Invalidate Federal Tax Regulation of Campaign Activity? (George Wash. Univ. Law Sch. Pub. Law & Legal Theory Research Paper Series, Paper No. 499, 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1572511
219. Ellen Aprill, Regulating the Political Speech of Noncharitable Exempt Organizations after Citizens United (unpublished manuscript) (on file with author).
220. See Richard Briffault, Campaign Finance Disclosure 2.0, 9 Election L.J. 273 (forthcoming Oct. 2010).
221. See Raymond J. La Raja, Will Citizens United v. FEC give more political power to corporations? (Sept. 2010) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1642175.
222. As I hope to discuss in a future article, the dissent's treatment of the antidistortion interest is the least coherent portion of the dissenting opinion. The dissent seems to simultaneously (1) reject the argument that the antidistortion interest is (solely) an equality rationale; (2) defend the argument as really about traditional corruption; and (3) mix equality and corruption concepts in discussing how corporate speech can "drown out" other voices. More promising is the dissent's discussion of anti-extortion and anti-rent-seeking rationales for corporate spending limits. Despite Justice Stevens recognizing in his dissent that he himself has endorsed the equalization rationale for campaign finance regulation more broadly, Citizens United v. FEC, 130 S. Ct. 876, 963 n.65 (2010) (Stevens, J., concurring in part and dissenting in part), the dissenting Justices chose not to offer a full-throated defense of the rationale. This could well be due to the government's failure to defend the rationale, a point stressed by both the majority opinion and the Chief Justice's concurring opinion.
223. I have written three earlier articles exploring the Court's doctrinal incoherence. See Hasen, Beyond Incoherence, supra note 17; Hasen, Buckley is Dead, supra note 50
224. Richard L. Hasen, The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell, 68 Ohio St. L.J. 849 (2007).
225. See supra notes 1-6 and accompanying text.
226. Citizens United, 130 S. Ct. at 911. The Court explained: We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation's political process. Cf. 2 U.S.C. § 441e (contribution and expenditure ban applied to "foreign national[s]"). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process.
227. Id. at 947-48 (Stevens, J., concurring in part and dissenting in part).
228. Id. at 948 n.51.
229. Id. at 911 (majority opinion). Of course, this question presupposes that foreign individuals and associations have First Amendment rights, and that point is not clear for certain foreign individuals and associations.
230. See David Cole, Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?, 25 T. Jefferson L. Rev. 367 (2003).
231. On the terms "electoral strategy" and "legislative strategy," see Daniel Hays Lowenstein, On Campaign Finance Reform: The Root of All Evil is Deeply Rooted, 18 Hofstra L. Rev. 301, 308 (1989). Some foreigners might want to spend money on U.S. elections just for the joy of doing so-the "consumption" value of political activity.
232. See Stephen Ansolabehere et al., Why is There so Little Money in U.S. Politics?, 17 J. Econ. Pers. 105 (2003). It is hard to see a foreigner's strong First Amendment interest in such circumstances.
233. Among prominent examples are self-financed candidates, who rarely win but can usually run a competitive campaign through self-funding. See Anne Bauer, The Efficacy of Self-Funding a Political Campaign, Nat'l Inst. on Money St. Pol. (June 22, 2010), http://www.followthemoney.org/press/PrintReportView.phtml?r=429&PHPS ESSID=6876d32e911ce6c20e13fc685e6908d4 (finding only 11 percent of self-funded candidates at state level successful in the 2000-2009 period).
234. Table 1: Cost of Winning: House and Senate Winners' Receipts, 1998-2008, Campaign Fin. Inst., Nov. 6, 2008, http://www.cfinst.org/congress/pdf/Table1_PostElec.pdf.
235. Richard L. Hasen, The Transformation of the Campaign Financing Regime for U.S. Presidential Elections (Loyola Law Sch. L.A. Legal Studies Working Paper Series, Paper No. 2009- 45, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1505527.
236. See Denise Roth Barber, An Overview of State Campaigns, 2007-2008, Nat'l Inst. On Money St. Pol., tbl. 1 (Apr. 6, 2010), http://www.followthemoney.org/Research/ (follow "An Overview of State Campaigns, 2007-2008" hyperlink; then follow "Legislative Campaigns" hyperlink).
237. See See Alan I. Abramowitz et al., Incumbency, Redistricting, and the Decline of Competition in U.S. House Elections, 68 J. Pol. 75, 82-83 (2006)
238. (discussing much greater competitiveness of House elections when challenger to incumbent raised over $1 million and much less competitive when competitors raised under $500,000); Table 4: Open Seat Winners and Losers, Senate and House, 2000-2008, Campaign Fin. Inst., Nov. 6, 2008, http://www.cfinst.org/congress/pdf/Table4_PostElec.pdf (reporting that open House seat winners in 2008 spent an average of $1.6 million and open Senate seat winners in 2008 spent an average of just under $7.4 million).
239. For each of these arguments against spending by "foreign individuals or associations," I leave aside the question of spending by permanent U.S. resident aliens, which presents different questions because resident aliens may have greater allegiance and attachment to the United States. I am including foreign governments, however.
240. See supra note 183 and accompanying text.
241. See Citizens United v. FEC, 130 S. Ct. 876, 899 (2010).
242. See id. at 911 ("[I]t is our law and our tradition that more speech, not less, is the governing rule.").
243. Id. at 899
244. cf. id. at 923 (Roberts, C.J., concurring) ("A speaker's ability to persuade provides no basis for government regulation of free and open public debate on what the laws should be.").
245. Id. at 909 (majority opinion).
246. Id. at 910.
247. See supra notes 92-98 and accompanying text.
248. See Citizens United, 130 S. Ct. at 948 n.51 (Stevens, J., concurring in part and dissenting in part) (citing Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 393 n.245 (2009)).
249. For a critical analysis of the investigation, see L. Ling-chi Wang, Beyond Identity and Racial Politics: Asian Americans and the Campaign Fund-raising Controversy, 5 Asian L.J. 329 (1998).
250. Neil Munro, FEC Rules Leave Loopholes For Online Donation Data, Nat'l J. Online (Oct. 24, 2008), http://www.nationaljournal.com/njonline/no_20081024_9865.php. Concern over foreign influence in the Obama Administration extends to the fringe "Birthers" movement, which contends despite clear evidence to the contrary that President Obama is ineligible to be president because he was born outside the United States.
251. See Jeff Zeleny, Persistent "Birthers" Fringe Disorients Strategists, N.Y. Times, Aug. 4, 2009, http://www.nytimes.com/2009/08/05/us/politics/05zeleny.html. In the 2010 election as well, foreign campaign influence was an issue. This time, Democrats accused the Republican-leaning U.S. Chamber of Commerce of taking foreign money, though they offered no proof of the accusation.
252. Eric Lichtblau, Topic of Foreign Money in U.S. Race Hits Hustings, Oct. 9, 2010, at A14, http://www.nytimes.com/2010/10/09/us/politics/09donate.html.
253. 130 S. Ct. at 910 (emphases added) (citation omitted) (internal quotation marks omitted).
254. Id. This is not to say that foreign spending would necessarily cause voters to lose confidence in our democracy. The empirical evidence linking campaign rules and faith in government is unclear at best.
255. See Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119, 123 (2004).
256. But the Court apparently has closed the courts to arguments that spending can affect voter confidence in any electoral context and for any kind of speaker.
257. Heather Gerken agrees, though she seems to think that it might be enough for the government to show a "legitimate" interest to justify such limitations. Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections: Hearing Before the S. Comm. on Rules & Admin., 111th Cong. 10 (2010) (statement of Professor
258. Heather K. Gerken, J. Skelly Wright Professor of Law, Yale Law School), available at http://rules.senate.gov/public/index.cfm?a=Files.Serve&File_id=46b20 c68-8e8b-44ba-a206-32703e280a4e.
259. See infra notes 258-259 and accompanying text.
260. The only polling on this question of which I am aware has been criticized for its methodology. See Memorandum from Joel Benenson, President, Benenson Strategy Grp., to Interested Parties (June 21, 2010), available at http://www.scribd.com/doc/33452341/Citizens-United-Survey
261. ("When voters learn that the ruling would make it easier for foreigners to spend money in U.S. elections, only 13% support it, while 82% oppose it.");
262. Sean Parnell, More biased polling on Citizens United, Ctr. for Competitive Pol. (June 23, 2010), http://www.campaignfreedom.org/blog/detail/more-biased-polling-on-citize ns-united (criticizing methodology).
263. The Court overturning the 5-4 decision in Citizens United is not out of the question if one of the Justices in the five-Justice majority leaves the Court. Justices Scalia and Kennedy had been arguing against Austin since it was decided in 1986, and the Chief Justice, in his Citizens United concurrence, pointed to the continued disagreement among the Justices over the case as a reason for not granting the case stare decisis effect. Citizens United, 130 S. Ct. at 922 (Roberts, C.J., concurring). The majority's and concurrence's strong reliance on prior dissenting opinions provoked a tart response from Justice Stevens: "Under this view, it appears that the more times the Court stands by a precedent in the face of requests to overrule it, the weaker that precedent becomes." Id. at 939 n.18 (Stevens, J., concurring in part and dissenting in part)
264. see also id. at 953-54 (commenting on the fact that the majority relied on earlier opinions of Justices writing separately, not for the Court, and observing that "those Justices were writing separately; which is to say, their position failed to command a majority. Prior to today, this was a fact we found significant in evaluating precedents").
265. Interestingly, most of the times that the Citizens United majority mentions the identity issue, it couches the question in terms of "corporate identity," rather than identity generally.
266. See supra note 5 (quoting the majority's discussions of identity-based restrictions).
267. Citizens United, 130 S. Ct. at 899.
268. See U.S. Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers (Letter Carriers), 413 U.S. 548 (1973). Notably, the restrictions on government employees do not prevent their voluntary contributions directly to candidate campaigns.
269. Both Ned Foley and Sam Issacharoff rely on the cases upholding limitations on the political activities of government employees to suggest that the Court would uphold corporate spending limitations on corporations that have contracts with the government. Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections: Hearing Before the S. Comm. on Rules & Admin., 111th Cong. 13 (2010) (statement of Professor Edward B. Foley, Dir., Election Law @ Moritz, Robert M. Duncan/Jones Day Designated Professor in Law, Moritz College of Law at The Ohio State University), available at http://rules.senate.gov/public/index.cfm?a=Files.Serve&File_id=071ef e1d-8181-4fc9-aa09-7b2933910468 ("But as long as Congress does legislate with appropriate sensitivity, there should be little doubt that Congress can regulate the campaign spending of government contractors, just like it can do so with respect to government employees.")
270. Samuel Issacharoff, Still Spinning, Am. Law., Apr. 2010, at 41, 42, available at http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202446435293&Still_ Spinning&hbxlogin=1 ("But if pay-to-play is the concern, we may already have a partial solution, and a constitutionally tested one. The Hatch Act restricts political activities by federal employees. It was founded on the concern that public employees are both too vulnerable and too concerned; they are both uniquely able to affect public policy and uniquely vulnerable to extortionate demands for contributions from those who would end up being their employers. The Hatch Act scheme could be broadened to include corporations who receive government contracts or subsidies.")
271. see also Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118 (2010) (expanding on argument for constitutionality of spending limits on government contractors). As much as I am sympathetic to the argument, I am much less sanguine than Foley and Issacharoff that the Roberts Court, as currently constituted, would uphold such a limitation (even with relatively high dollar thresholds, as suggested by Foley), especially considering the broad range of corporations with significant government contracts. The Court could well view this as a ban on the speech of the most important and largest corporations in the United States, each of which does significant business with the federal government. Consider how Justice Scalia ended his concurring opinion: "Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate." Citizens United, 130 S. Ct. at 929 (Scalia, J., concurring). The contrast with Letter Carriers is also instructive. The political limitations on government employees in Letter Carriers did not bar employee campaign contributions or spending. Corporations with significant government contracts also do considerable business outside the government, unlike the government employees who depend solely or primarily upon government employment for their income. The threat of extortion of such corporations therefore seems far lower than the threat to government employees, even though the monetary stakes are much higher.
272. 129 S. Ct. 2252 (2009).
273. Id. at 2257.
274. Id. at 2258.
275. Id. at 2262.
276. Citizens United v. FEC, 130 S. Ct. 876, 967 (2010) (Stevens, J., concurring in part and dissenting in part).
277. Id. at 968 ("The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.")
278. see also Symposium, State Judicial Independence-A National Concern, Transcript: Session 1: One Symptom of a Serious Problem: Caperton v. Massey, 33 Seattle U. L. Rev. 569, 581 (2010) (comments of Richard Hasen) ("In the majority opinion in Caperton, Justice Kennedy elides over the distinction between contributions and expenditures and this history of campaign finance jurisprudence."). The dissent further explained that the Caperton decision "underscore[d]" (1) the need for "prophylactic measures," given the extreme difficulty in proving corruption; (2) the tendency of for-profit corporations to use "nonprofit conduits" with "misleading names;" and (3) the fact that the Court's decision would extend to all types of elections, including judicial elections. Citizens United, 130 S. Ct. at 968 (Stevens, J., concurring in part and dissenting in part).
279. Citizens United, 130 S. Ct. at 910 (citations omitted).
280. Caperton, 129 S. Ct. at 2263-64 (emphasis added).
281. Citizens United, 130 S. Ct. at 968 (Stevens, J., concurring in part and dissenting in part).
282. Id. at 909 (majority opinion).
283. Id. at 910.
284. The four Justices concurring in Justice Kennedy's Citizens United majority opinion dissented in Caperton; the four Citizens United dissenters joined his majority opinion in Caperton.
285. 536 U.S. 765 (2002).
286. Id. at 805 (Ginsburg, J., dissenting) (internal quotation marks omitted) ("I do not agree with this unilocular, 'an election is an election,' approach. Instead, I would differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons.").
287. Justice O'Connor was also a member of the White majority. She has since expressed regret about her vote in that case, and has been one of the leading voices calling for judicial elections to be abolished.
288. Tony Mauro, Court backs N.Y. judicial-election system despite concerns, First Amendment Center (Jan. 17, 2008), http://www.firstamendmentcenter.org/analysis.aspx?id=19565. It was no coincidence that Justice Stevens cited Justice O'Connor's statements about the problems of money in judicial elections in his Citizens United dissent.
289. See Citizens United, 130 S. Ct. at 968 (Stevens, J., concurring in part and dissenting in part) ("At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O'Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races.").
290. Citizens United, 130 S. Ct. at 910 (quoting McConnell v. FEC, 540 U.S. 93, 297 (2003) (Kennedy, J., concurring in the judgment in part and dissenting in part)). Justice Kennedy added, "It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness." Id.
291. In James J. Sample, Democracy at the Corner of First and Fourteenth: Judicial Campaign Spending and Equality, 66 NYU ANNUAL SURVEY AM. L. (forthcoming 2011), draft available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1662630
292. Professor Sample refers to independent spending made in the judicial elections context as a "Caperton contribution." He praises Justice Kennedy's rejection of "formalism" in holding that such a "contribution" should trigger judicial recusal. Id. Whether or not one agrees with the result in Caperton (as I do), relabeling independent spending as a "contribution" so as to reach a desired result will only increase the incoherence of existing law. For example, it would raise questions such as when other expenditures should doctrinally be treated as "contributions." One defensible way to reach the result in Caperton without resorting to incoherent terminology would be to recognize that independent spending does have the potential to corrupt, but that outside the context of judicial elections where we are concerned especially with the public's confidence in the fairness of the judicial process, the state's interest in preventing such corruption is outweighed by the considerable First Amendment costs of limiting such spending. I suspect that is what Justice Kennedy believes, and it is unhelpful to hide behind a "contribution" label.
293. Another question is whether the Court might view the First Amendment application to state elections more leniently than its application to federal elections. The existing empirical evidence casts doubt on the likelihood of this scenario. Adam Winkler found in a study of federal court decisions in a fourteen-year period that free speech laws were more likely to be upheld if passed by the federal government, and less so if passed by state, or especially local, governments.
294. Adam Winkler, Free Speech Federalism, 108 Mich. L. Rev. 153 (2009).
295. Lowenstein et al., supra note 24, at 707-13 (describing controversy since Buckley over the contribution-expenditure distinction).
296. Citizens United, 130 S. Ct. at 909.
297. Id. at 901 (citations omitted).
298. Id. at 908 (citations omitted).
299. Buckley v. Valeo, 424 U.S. 1, 27-28 (1976) (per curiam).
300. See, e.g., Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 427-30 (2000) (Thomas, J., dissenting).
301. E.g., id. at 390-95 (majority opinion). The only significant crack in this treatment thus far came in the Court's fractured decision in Randall v. Sorrell, 548 U.S. 230 (2006), striking down Vermont's contribution limits as unconstitutionally low, but the controlling opinion there did not purport to alter the Court's fundamental approach to contribution limitations.
302. See Richard L. Hasen, Shrink Missouri, Campaign Finance, and "The Thing That Wouldn't Leave," 17 Const. Comment. 483, 491-96 (2000).
303. See supra notes 104, 111 and accompanying text.
304. Heather K. Gerken, The Real Problem with Citizens United, Am. Prospect (Jan. 22, 2010), http://www.prospect.org/cs/articles?article=the_real_problem_with_citize ns_united.
305. FEC v. Nat'l Right to Work Comm., 459 U.S. 197 (1982). The case gets little treatment in the two leading casebooks. Of the 280 pages on campaign finance in the Lowenstein, Hasen, and Tokaji casebook, NRWC is discussed on three pages (795, 796, and 844).
306. Lowenstein et al., supra note 24, at 795-96, 844. The case does not appear in the index of Samuel Issacharoff et al., The Law of Democracy: Legal Structure of the Political Process (3d ed. 2007).
307. Citizens United v. FEC, 130 S. Ct. 876, 909 (quoting NRWC, 459 U.S. at 207-08). 245. Id. (citations omitted). The Court further explained that "Citizens United has not made direct contributions to candidates and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny." Id. Moreover, the Court, in explaining Buckley's holding that contribution limitations could be imposed to prevent quid pro quo corruption, explained that "restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption." Id. at 908 (citations omitted).
308. Id. at 959 (Stevens, J., concurring in part and dissenting in part); see also id. at 925 (Roberts, C.J., concurring) ("We have also had the benefit of a comprehensive dissent that has helped ensure that the Court has considered all the relevant issues.").
309. See supra note 50 and accompanying text.
310. Justice Thomas appears to be the lone exception among current Justices. See Hasen, supra note 142.
311. See generally Barry Friedman, The Will of the People (2009); Public Opinion and Constitutional Controversy (Nathaniel Persily et al. eds., 2008).
312. S. 3295, 111th Cong. (2d Sess. 2010); H.R. 5175, 111th Cong. (2d Sess. 2010).
313. See, e.g., Bradley A. Smith, Disclosed Partisanship, Nat'l Rev., June 7, 2010, at 26, 27, available at http://article.nationalreview.com/434739/disclosed-partisanship/bradley- a-smith?page=1 ("DISCLOSE's partisanship is apparent in its different treatment of corporations and unions.").
314. Justice Stevens acknowledges this Catch-22: Under the majority's view, the legislature is thus damned if it does and damned if it doesn't. If the legislature gives media corporations an exemption from electioneering regulations that apply to other corporations, it violates the newly minted First Amendment rule against identitybased distinctions. If the legislature does not give media corporations an exemption, it violates the First Amendment rights of the press. The only way out of this invented bind: no regulations whatsoever.
315. Citizens United v. FEC, 130 S. Ct. 876, 976 n.75 (2010) (Stevens, J., concurring in part and dissenting in part).
316. The point is debatable if one recognizes the different role media corporations play in society. See supra note 149 and accompanying text.
317. I describe the competing stories in historical terms in Richard L. Hasen, The Nine Lives of Buckley v. Valeo, in First Amendment Stories (Richard W. Garnett & Andrew Koppelman, eds.) (forthcoming 2010), draft available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1593253.
318. It is not at all clear that Justice Kagan will side with the other liberals on the campaign finance issue. See Richard L. Hasen, The Big Ban Theory, Slate (May 24, 2010, 12:16 PM), http://www.slate.com/id/2254830/ (describing position of then-Solicitor General Elena Kagan on campaign finance reform issues).
319. See Citizens United, 130 S. Ct. at 963 n.65 (Stevens, J., concurring in part and dissenting in part).
320. In Randall v. Sorrell, 548 U.S. 230, 240-44 (2006), the Court, applying Buckley, refused to reconsider the unconstitutionality of candidate spending limits.
321. ABC News/Washington Post Poll Results, ABC News, http://abcnews.go.com/images/PollingUnit/1102a6Trend.pdf (last visited Oct. 24, 2010). Significantly, the Court's ruling in Citizens United was opposed by 76% of Republicans polled and 73% of conservatives.
322. Gary Langer, In Supreme Court Ruling on Campaign Finance, the Public Dissents, ABC News (Feb. 17, 2010, 7:00 AM), http://blogs.abcnews.com/thenumbers/2010/02/in-supreme-court-ruling-on-c ampaign-financethe-public-dissents.html.
323. Two other polls reached similar, though not quite as strong, results. News Release, The Pew Research Ctr. For The People & The Press, Midterm Election Challenges for Both Parties, 31 (Feb 12, 2010), available at http://people-press.org/reports/pdf/589.pdf (68% disapproval of Citizens United decision compared to 17% approval); Fox News Poll: Opinion Dynamics, Fox News (Feb. 4, 2010), http://www.foxnews.com/projects/pdf/020410_Obama-Washington_web.pdf (report which specifically mentioned the First Amendment rights of corporations found the Citizens United decision opposed by 53% of respondents, with 27% approving). The only poll of which I am aware to reach a somewhat contrary result, conducted for the Center for Competitive Politics, asked the question, "Do you believe that the government should have been able to prevent Citizens United, an incorporated nonprofit advocacy group, from making its movie available through video-on-demand technology?" Citizens United poll shows broad support for free political speech, Ctr. for Competitive Pol. (Mar. 4, 2010), http://www.campaignfreedom.org/docLib/20100304_CCPpoll03042010.pdf (19% said yes and just over 51% said no). The poll did not ask about a PAC requirement imposed on corporations generally. Id. Nor did its question explain that Citizens United could have used its PAC to pay for making its movie available. Id.
324. Lydia Saad, Public Agrees With Court: Campaign Money Is "Free Speech," Gallup, (Jan. 22, 2010), http://www.gallup.com/poll/125333/public-agrees-court-campaign-money-fre espeech.aspx.
325. Id. (52 percent to 41 percent).
326. See David M. Primo, Public Opinion and Campaign Finance: Reformers Versus Reality, 7 Indep. Rev. 207, 210, 212 (2002), available at http://www.rochester.edu/college/psc/primo/primoindrev.pdf.
327. A federal district court recently rejected the Republican National Committee's "as applied" challenge to the BCRA's soft money rules. Republican Nat'l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010) (three-judge court). The district court held the claims indistinguishable from the ones rejected in McConnell, but added the following observation: In due course, the Supreme Court will have the opportunity to clarify or refine this aspect of McConnell as the Court sees fit, and to consider the RNC's challenge to § 323(a) in light of the RNC's pledge to no longer grant preferential access to soft-money contributors. As a lower court, however, we do not believe we possess authority to clarify or refine McConnell in the fashion advocated by the RNC, or to otherwise get ahead of the Supreme Court.
328. Id. at 160.
329. The Supreme Court summarily affirmed the district court decision. Republican Nat'l Comm. v. FEC, 130 S. Ct. 3544 (2010). Justices Kennedy, Scalia, and Thomas would have heard the case. Id. If the RNC refiles its case as a straightforward facial challenge to McConnell's soft money holding, I would be unsurprised it the Court took the case and then either overturned McConnell or whittled it away first, along the lines of WRTL II.
330. In Majors v. Abell, 361 F.3d 349, 355-58 (7th Cir. 2004), Judge Easterbrook, issuing a separate opinion dubitante, lamented the lack of guidance from the Supreme Court on its campaign finance disclosure jurisprudence. After reviewing the contradictory caselaw, he remarked, "How can legislators or the judges of other courts determine what is apt to tip the balance?"
331. Id. at 357 (Easterbrook, J., dubitante). Judge Easterbrook wrote before Citizens United, and Doe v. Reed clarified the general constitutionality of campaign finance disclosure regimes.
332. John G. Matsusaka & Richard L. Hasen, Aggressive Enforcement of the Single Subject Rule, 9 Election L.J. 399 (2010).
333. See Richard L. Hasen, No Exit? The Roberts Court and the Future of Election Law, 57 S.C. L. Rev. 669 (2006).
334. 540 U.S. 93 (2003).
335. See Lillian R. BeVier, McConnell v. FEC: Not Senator Buckley's First Amendment, 3 Election L.J. 127, 127 (2004).
336. On President Obama's attacks on the Court as part of a political strategy, see Richard L. Hasen, Scalia's Retirement Party, Slate (Apr. 12, 2010, 3:55 PM), http://www.slate.com/id/2250579/.