With High Court Vacancy, It’s Hip to Seriously Think beyond Citizens United…
CAMBRIDGE—Substantively little has been or could be done to contain the flood of money into American politics ushered in by Citizens United v. FEC, the 2010 US Supreme Court case that sanctioned unlimited third-party spending in elections. A few weeks ago, people “rolled their eyes” when Professor Richard Hasen would prescribe ways to correct these problems.
With constitutional amendments problematic and politically impossible, attention turns to the very Supreme Court that birthed this situation. The death of Supreme Court Justice Antonin Scalia made that route plausible, but what should the law overturning Citizens United look like?
Hasen, University of California, Irvine School of Law professor and publisher of the popular Election Law Blog, was here last Friday to discuss his new book Plutocrats United. At a talk organized by Harvard Law School’s branch of the Rootstrikers held in a basement classroom, Hasen discussed campaign finance law and how a new Court majority could reshape it.
Much of the campaign finance reform debate is framed in facile terms about corporations buying elections and attacks on freedom of speech which often miss the issue’s complexities amid real concerns about wealth inequality in the United States.
“Economic inequalities become political inequalities,” Hasen said.
This point is obscured by an emphasis on the “corruption” of campaign financing and “buying” of elections rather than the subtler corrosion of civic life. Indeed, Hasen cited several examples of money not buying elections such as the small fortune former eBay chief Meg Whitman spent during her 2010 quest to become California’s governor.
“No doubt many Californians thought they’d be great governors, but they didn’t have $140 million to fund campaigns,” Hasen dryly noted.
These examples do underscore, however, that the wealthier are more likely to get heavily involved in politics. The wealthy’s access to politicians, relative to the less well-off, can skew public policy from tax breaks to huge corporation to frustrating the implementation of the 2010 Wall Street reforms.
Most case law going back to Buckley v. Valeo, a 1976 case has upheld restrictions on the basis of reducing corruption, not any higher-minded ideals about maintaining political equality.
Hasen cited statistics about historically low levels of corruption in Congress and the Citizens United line of cases has argued that ingratiation and access are not corruption. The Court has even spun successors cases like McCutchen v. FEC, which abolished overall individual limits, as providing accountability.
To counter this, Hasen proposed a mix of stiff caps on campaign contributions elections combined with a public campaign financing system allowing all citizens to contribute to their favorite political causes and candidates to “give everybody a stake.”
Because of the implications upon the First Amendment, any action must strike the right balance.
An overbroad constitutional amendment could censor political speech, privilege elite and established media companies and entrench incumbents. A too weak amendment returns the issue to a potentially unsympathetic Supreme Court.
Hasen admitted he learned this the hard way. Some years ago he suggested campaign rules might need to require even newspapers endorsing a candidate to register a PAC with the government. His mentor, political scientist Daniel Lowenstein, “half-joking, only half-joking, described it as Stalinist.”
An over inclusive definition of the press, however, renders freedom of the press meaningless. “If everybody is the press, then nobody is the press,” he stated.
Though not offering any definitive means to define the press, Hasen observed that the Court already does this. Its public information office has wrestled with nontraditional outlets like SCOTUSblog. The justices could apply that experience to their jurisprudence.
Although sympathetic to the speech concerns, Hasen said there was hypocrisy on that side, too. The Court has ruled that more speech—and the means to pay for it—the better, regardless of source. Still many campaign finance opponents have backed bars against non-permanent residents spending anything on elections.
Many opponents have also said these restriction would hurt American democracy, but Hasen noted countries like Canada and Great Britain, largely viewed as free as the US, maintain strong campaign spending limits.
Although vouchers could become law now, strict limits on contributions or spending would need action from a changed Court following Scalia’s death.
Hasen told WMassP&I that should a new justice viewed as sympathetic to campaign finance reform be seated, he would watch the states.
“I think it would be a locality or state that would pass or revive a corporate spending limit, which would then make it to the Supreme Court,” Hasen explained. “And that would be the way to do it pretty quickly.”
Ultimately, Hasen said Buckley would probably need to go, too. That would require courts to move away from only suffering campaign finance regulations as an anti-corruption tool. Buckley’s deference to spending ultimately underpins everything that opponents of unrestricted campaign money detest.
At the least, Austin overruled. Better: political equality as a compelling interest balanced against 1st Amendment https://t.co/sOAMQsQz6r
— Rick Hasen (@rickhasen) February 19, 2016
Citizens United “broke a psychological barrier for billionaires to pay for ads,” Hasen said. Felling it alone would only end corporations’ role. The uber-rich would still spend on campaigns—just in their own name as prior law allowed.
Other measures like better disclosure and public financing could help, too.
Speaking to WMassP&I, Hasen said public financing systems like Connecticut’s, which awards public funds to candidates collecting small donations. However, this too, had been blunted by the Court.
Such setups “are a lot better than not having campaign financing, but they were somewhat hobbled by the Supreme Court’s decision in the Arizona case a few years ago,” Hasen said, “which said that individuals can’t get extra matching funds when they face large spending on the other side.” That might dissuade candidates from using public funds unless there are multiple matches as in New York City.
A robust public financing system could be effective at defeating entrenchment at the local level. Short of term limits, which has its own drawbacks, Hasen pointed to public financing of grassroots candidates as means to seriously challenge incumbents.
It could be “seed money that gets people to at least make a case for why the incumbent does not deserve reelection,” he said.