As it happened, I was planning to write about campaign finance reform, prompted in part by Bernie Sanders' repeated criticisms of a "corrupt political system," when I realized that today was the sixth anniversary of the Citizens United v. FEC decision which ended the ban on corporate independent expenditures. So, I figured today was as good of a day as any to write it.
I have a number of problems with Citizens United, not the least of which is the way it was decided. The Court had, in McConnell v. FEC several years earlier, decided the precise question that it later overruled in Citizens United, after scheduling the case for reargument. The only thing that had changed between 2003 and 2010 which had any effect on the result was that Sandra Day O'Connor was no longer a Supreme Court Justice, and Samuel Alito was.
After the D.C. Circuit struck down contribution limits to independent expenditure committees in SpeechNOW.org v. FEC, the FEC issued an advisory opinion which essentially created what we now know as "Super PACs." So, while it's true to say that Citizens United led to Super PACs, there were a couple of steps in between.
Citizens United is based on the assumption that 1) quid pro quo corruption is the only form of corruption that the government has a compelling interest in regulating or preventing; and 2) independent expenditures do not lead to corruption or the appearance of corruption. As any one who has been around politics and witnessed the lack of any meaningful enforcement of anti-coordination rules can tell you, this is a ludicrous assumption.
The other thing Citizens United did, which unfortunately has been largely ignored by the lower courts when it comes to state law, was generally uphold the federal disclosure scheme. Sadly, given the relatively toothless nature of FEC enforcement, the prohibition on coordination is really not a prohibition at all, and the IRS' loose enforcement of the political campaign activity restriction for 501(c)(4) organizations means that some groups are evading federal disclosure rules altogether. (You'll generally hear these groups referred to as "dark money" groups).
All of this combines to give us a campaign finance system that is arguably worse than what existed before McCain-Feingold. About the only things that have survived are the ban on soft money for political parties, (though not entirely), the increased contribution limits indexed to inflation, and the disclaimer which must air on every broadcast radio or television ad. (You know the one: I'm [candidate] and I approve this message.)
And so, it's hardly a surprise that some liberals have taken up overruling Citizens United (often said as "repeal," which would be a legislative act) as their chief cause. In the Presidential campaign, the cause has found a champion in Bernie Sanders (though Hillary Clinton has also supported overruling Citizens United). He rails against a corrupt political system and vows to end the corrupt influence of money by appointing judges who would overrule Citizens United and Buckley, and pushing for a constitutional amendment to allow for strict campaign finance regulation. He's right to be concerned about money in politics. He's wrong about the solution.
I don't mean to pick on Bernie here. His position is no different than many other Democrats. But he's a good example of what I'm afraid too many Democrats and liberals are getting wrong about Citizens United in particular and campaign finance reform more broadly.
1. Citizens United is not the source of our campaign finance problems. It did make things considerably more difficult, but the primary effect was to cut out the middleman when it comes to corporate independent expenditures. The effect is not all that different than the soft money which McCain-Feingold tried to ban, except now the spending is in the hands of nominally independent committees, instead of the political parties.
The worst impact of Citizens United has not been on the federal level, but on the state level, where state regulatory schemes have been gutted by federal courts which went even further and struck down mandatory disclosure laws, and by the Supreme Court in striking down a public financing scheme that included spending limits in Arizona (which in turn gutted the campaign finance limits in Nebraska, essentially leaving Nebraska with no caps on contributions or spending whatsoever).
Which brings us to our next point: Even if Citizens United is overruled, likely through a challenge of a state law, Super PACs will not go away on their own. For one thing, Citizens United itself didn't create Super PACs, and federal campaign finance law probably won't be at issue if and when Citizens United is overruled. The FEC is probably unlikely to enforce a law that was struck down by the Supreme Court, even if the decision had been subsequently overruled. What it means is that Congress would have to actively ban Super PACs. Now, anyone want to place bets on how likely that is?
2. A common refrain from proponents of campaign finance reform is this: "money isn't speech." The problem lies in the hypocrisy of that statement. Think about how many times you have been asked by a campaign over the last year to give money. What's their pitch? Help us. Come be a part of the campaign. Bernie Sanders touts the number of small donors who give to his campaign, and calls his supporters part of a movement. Are we really going to argue that there isn't a First Amendment implication on contributions to a political campaign at all?
3. The FEC is a joke. If you follow me on Twitter, you'll know that I throw this phrase around, usually in reference to some campaign brazenly skirting rules against coordinating with Super PACs. While disclosure usually runs smoothly, enforcement is rather toothless, and the structure of the commission is a major reason why. No more than three members of the six-member body may be from the same political party. This is obviously meant to prevent partisan abuse, but in reality means that the commission is hopelessly and perpetually deadlocked on any controversial issue. The process of appointment and the hot-button nature of campaign finance reform also means that new members are rarely appointed and confirmed by the Senate. Five of the six current members of the FEC are serving expired terms. Four members were appointed by George W. Bush. Remember, we are in year eight of the Barack Obama administration.
4. We need to be very, very careful about unintended consequences. Setting aside the feasibility of a campaign finance reform amendment, I think every proponent of free speech should consider what the potential consequences of such an amendment might be. You're amending the Constitution to give the government the ability to ban speech. You can dress that argument up however you'd like, but in reality, that would be exactly what you are doing.
I know that some of this can come across as defeatist. I don't believe getting money out of politics is all that realistic. And I think Sanders' campaign structure is a pretty good example of why it might not be such a good idea to open the door wide to restrictions. He's raising a ton of money from small-dollar donors, and making a strong case for his agenda. Meanwhile, a guy who has raised comparatively little money is dominating the race for his own party's nomination because he has so much of his own that he doesn't even care about raising from other people. I'm not sure creating an environment in which the latter is incentivized would be such a good idea, either.