February 03, 2010
Constitutional expert and Harvard Law School Professor Laurence Tribe ’66 testified before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties today regarding the future of the First Amendment and campaign finance reform in the wake of the Citizens United case.
The high-profile ruling, which was issued on January 21, found that legal restrictions on corporations advertising for and against political candidates violate free speech principles. Read a round-up of HLS faculty commentary on the case.
In his written testimony (PDF) Tribe noted that he did not “reflexively reject the application of the First Amendment to corporate speech.” He went on to say that his view of Citizens United was “more measured in assessing the likely impact.”
However, Tribe said: “One danger is that business corporations, armed with treasuries of almost unimaginable magnitude, may choose to deploy what is essentially other people’s money in strategic ways that can critically reshape the political landscape of the entire Nation. Such corporations are not necessarily limited to any particular geographical region and so could prowl the country to find a House district or a Senatorial race in which their now unlimited expenditures might swing the balance. […] To be sure, none of us can be certain that Citizens United will unleash dangers this extreme, but the risks seem real enough to take very seriously.”
Tribe devoted the bulk of his testimony showing that “‘limited measures to protect against corporate domination’ in fact remain possible and worth enacting; […] that despite the blow they struck against the interests of ordinary citizens and genuine self government, they [the Justices] did not entirely foreclose meaningful avenues of legislative relief short of constitutional amendment.”
Tribe’s list of potential remedies included:
Limiting foreign influence over American elections: “Indeed, the majority twice underscored the central place of the citizen/foreigner distinction in its holding: At the heart of the opinion was this sentence: ‘If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.’…The dissent went out of its way to treat the majority’s explicit decision to leave the matter open as an ‘acknowledge[ment] that Congress might be allowed to take measures’ aimed at ‘preventing foreign individuals or associations from influencing our Nation’s political process.’”
Authorizing states to protect their elections from out-of-state influence: “As Justice Stevens noted in his Citizens United dissent, ‘[i]n state elections, even domestic corporations may be ‘foreign’-controlled in the sense that they are incorporated in another jurisdiction and primarily owned and operated by out-of-state residents.’ If a State were to act on that view by barring electioneering expenditures by out-of-state corporations…only in the sense of being external to the State, a good argument could be made that it would not be the First Amendment that would stand in its way but the Commerce Clause and its correlative principle that States may not, without the consent of Congress, discriminate against or unduly burden out-of-state businesses and residents. If indeed that would be the constitutional objection, then Congress might take a leaf from the book of insurance regulation, where federal law ever since the McCarran-Ferguson Act of 1945 has permitted States to exclude out-of-state interference and competition.”
Barring corporate electioneering by government contractors: “Again drawing on the Stevens dissent not as a source of critique of the Citizens United holding, with which we are all stuck for the foreseeable future, but as a source of ideas for permissible legislative responses, I would call attention to his point that ‘some corporations have affirmatively urged Congress to place limits on their electioneering communications’ because they ‘fear that officeholders will shake them down for supportive ads, that they will have to spend increasing sums on elections in an ever-escalating arms race with their competitors, and that public trust in business will be eroded.’”
Improving the protection of unconsenting shareholders: “Congress may build on the universal recognition that existing shareholder remedies are of limited value by requiring shareholder pre-approval of some categories of electioneering expenses and/or creating a new federal cause of action for dissenting shareholders of publicly traded for-profit companies, arming those who sue under this new cause of action with both procedural and substantive tools that can reduce the dangers that unwilling shareholders will be compelled to subsidize speech with which they disagree.”
Strengthening disclaimer and disclosure requirements: “Among the kinds of disclosure requirements I would be inclined to favor would be rules designed to prevent circumvention of existing disclosure laws through the creation of ‘shell’ corporations into which for-profit companies might funnel campaign expenditures. I would also favor ‘stand-by-your-ad’ obligations for the corporate officers, including the CEO, of for-profit corporations responsible for directly or indirectly funding, producing, or disseminating particular electioneering communications.”
Tightening anti-coordination rules: “My understanding is that the FEC’s rules for determining which expenditures are coordinated as opposed to independent are ambiguous and loophole-ridden to the point of being barely worthy of the label ‘rules.’ Congress should not wait until the FEC is a fully staffed and effectively functioning body before itself specifically codifying criteria for determining what counts as an ‘independent’ expenditure.
Public financing possibilities: “Finally, of course, it remains possible in theory to redesign the election system as a whole in ways calculated to offset the influence of large contributors and big spenders, corporate as well as individual. The underlying idea of all such redesign is to reduce the imbalance not by restricting or capping Big Money but by balancing it with Little Money, fighting fire with fire, battling the speech of corporate and moneyed interests with more speech by ordinary citizens.”