Some thoughts and historical perspective on Citizens United

I have been working my way through the 186 pages of the U.S. Supreme Court opinions earlier this week in Citizens United v. Federal Election Commission, a decision that has prompted widespread outcry from many circles, including President Obama. There is lots of food for thought in all that prose, including various morsels regarding corporations and stare decisis that I am still digesting, but here is what I'm currently chewing on:

1. Is there, as a practical matter, really a problem in this country with the "chilling" of the political speech of unions and corporations (a major focus of Justice Kennedy's majority opinion)? I hadn't noticed. I'd been under the general impression that people who run unions and corporations have not been particuarly shy about speaking up in an attempt to influence the political process in this country.

2. Is the Supreme Court getting ready to revisit -- and overturn -- the limits on campaign contributions that were upheld in in 1976 in Buckley v. Valeo (more about this case below)? If not, then why does Justice Kennedy write "Citizens United ... has not suggested that the Court should reconsider whether contribution limits should be sujected to rigorous First Amendment scrutiny?" Does he wish they had? Is he sending a message? After all, Justices Scalia and Thomas have already told us that they wish to overrule Buckley.

3. If the Court eventually does decide that campaign contribution limits are unconstitutional, so that a person, union, or corporation can contribute, say, $90,000, to a congressional political campaign, then will we have to let former Congressman Jefferson out of jail -- the one found with $90K in his freezer who's currently in jail for 13 years? If not, then what's the difference between the $90K recipient in the Capitol building and the $90K recipient in lock down? Cool moves? Better legal advice?

4. Was Justice Kennedy able to keep a straight face when he wrote the following:

"[I]ndependent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.”

5. When reading an opinion written by Justice Scalia, does anyone else immediately and involuntarily conjure a mental image of Mr. Potter from "It's a Wonderful Life?"

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There's a lot to be said in favor of the result in Citizens United, maybe even for overturning Buckley, as well. It's not just the five Justices appointed to the Court by Republican Presidents who think a restraint on "electioneering communications" by unions and corporations violates the First Amendment guarantee of free speech: so does the ACLU.

Many people expressing anger at the result in Citizens United have a hard time swallowing two core election law principles: that a restraint on political spending amounts to a restraint on political speech; and that Congress can put caps on contributions but not on "independent expenditures" (say, purchasing a billboard ad on behalf of, but not at the request or suggestion of, a candidate). But those principles were established back in 1976 in Buckley v. Valeo, when William F. Buckley's brother James and others challenged post-Watergate election reform legislation passed by Congress over President Ford's veto in 1976. James Buckley had been elected as a U.S. Senator from New York in 1970 as a candidate neither of the Democratic or Republican parties, but as the candidate of the Conservative party and the Independent Alliance party. He defeated incumbent Republican Charles Goodell (appointed by Governor Rockefeller to serve out the balance of Sen. Robert F. Kennedy's term after his assassination in 1968; he was also the candidate of the Liberal party: there was once a time when one could be both a Republican and a liberal) and Richard Ottinger was the Democratic candidate. Although 60+% of the electorate voted for someone other than James Buckley, his two liberal opponents split the vote, and Sen. Buckley won with a plurality of just over 38%.

Another plaintiff in that case was Sen. Eugene McCarthy, who, at the time, was an early announced third-party candidate for President in 1976. Sen. McCarthy was represented in the case by: the ACLU.

Why would a liberal hero such as Sen. Eugene "Get Clean for Gene" McCarthy team up with the brother of arch-conservative hero William F. Buckley to oppose the post-Watergate election reform legislation?

- That legislation introduced the Presidential Election Campaign Fund (that box on your income tax return form); and funding would be provided much more generously to "major parties" than to minor parties (such as Sen. Buckley's and Sen. McCarthy's third parties); and

- Sen. McCarthy would not have been able to make his famous 1968 run at the presidency in a world of capped contributions:

As reported just this week in The Wall Street Journal, Senator McCarthy's landmark and principled 1968 Presidential campaign raised more money, adjusted for inflation, than George W. Bush's campaign this year, and did so relying on a small handful of extremely wealthy individuals who shared the ideals and values of Senator McCarthy and his supporters.

The preceding quote comes from a 2000 speech by Prof. Joel Gora, Sen. McCarthy's attorney in the Buckley case, which is worth reading (even if you customarily have your browser set to block the website of the Federalist Society).

The ACLU argues, among other things, that (1) we don't want the government to be in the business of restraining political speech at all, even if it is loathsome, abhorrent speech (say, a legal opinion written by Justice Scalia), (2) in the real world, there is no useful distinction between contributions (which, Buckley says, Congress can cap) and independent expenditures (which, Buckley says, Congress cannot cap) because contributions and expenditures are "two sides of the same First Amendment coin" (i.e., contributions are simply a means to the end of expenditures), (3) our country has had almost 40 years of experience now with capped contributions, and our campaign finance regulatory system today does not seem a whole lot more immune to influence from wealthy persons than it was at the time of Watergate, and (4) an (unintended?) effect of the legislation is that "individual and corporate owners of major media outlets are wholly immune from any campaign finance controls on the use of their resources to affect electoral outcomes, while candidates who wish to reply to a media attack are limited in their ability to seek financial contributions from their supporters."

I think there's merit to the ACLU view.

But, like most Americans, I really am troubled by the prospect of the both quid pro quo corruption (question #3 above) and influence and access peddling (question #4). Justice Kennedy comes close to saying that we don't need campaign finance laws because we already have a Federal bribery statute.

It's nice to know that we can remove from our government those people who are caught red-handed with $90,000 in their freezer and convicted after a jury trial. But when the Congress and the Senate actually and at long last pull it together to raise the bar a tiny bit higher than that, is it really necessary for the Supreme Court to say that they can't?