January 25, 2010
There is no doubt that Citizens United v. Federal Election Commission marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent.
The masterful dissent by Justice Stevens, which merits close reading by anyone interested in the Supreme Court as an institution or in the Constitution as a source of law, shreds any serious claim to the contrary. It also gravely undermines the First Amendment analysis offered by the majority and concurring opinions, doing so thoroughly enough that anyone who (like me) regards the issues in this case as close and difficult has to wish that Justice Kennedy, joined by the Chief Justice and by Justices Scalia, Thomas, and Alito, had been less emboldened by the knowledge that the votes were there for what they all deemed the right result and had taken greater care to respond, point by point, to the largely unanswered critique launched by Justice Stevens, joined in his dissenting opinion by Justices Ginsburg, Breyer, and Sotomayor.
But there will be plenty of time to dissect the several lengthy opinions in this case and to opine on the merits, and it’s not my purpose in this brief comment to add to that growing body of commentary. I would say only that I share neither the jubilant sense that the First Amendment has scored a major triumph over misbegotten censorship nor the apocalyptic sense that the Court has ushered in an era of corporate dominance that threatens to drown out the voices of all but the best-connected and to render representative democracy all but meaningless.
Indeed, part of the argument the dissenting justices made against the Court’s opinion rested on the proposition that the federal restrictions on corporate campaign advocacy that the Court struck down, far from banning corporate campaign speech outright as the majority claimed, had in fact left such speech largely intact. It allowed corporations to spend unrestricted sums from their general treasuries for or against particular candidates at any time outside the limited windows that were shut by this federal statute and, without limit of time, permitted unrestricted corporate spending for those same purposes over any of the media not addressed by the statute. It also allowed corporations to use PACs to support or oppose candidates in federal elections regardless of medium and independent of timing. Moreover, the provisions struck down in Citizens United left wealthy individuals free to make independent expenditures in unlimited amounts advocating or opposing the election of identified candidates, state or federal. To the degree that those corporate and individual speech opportunities are touted by the dissenters as adequate, the invalidation of the remaining restrictions should be expected to have less staggering consequences. And tellingly, in the more than two dozen states that currently allow corporate spending without any dollar limit to promote or oppose particular candidates in campaigns for state political office, there doesn’t seem to have been the overwhelming flood of corporate spending on state elections that some predict the Citizens United ruling will unleash in federal elections. The reason seems clear enough: business corporations are necessarily risk-averse and hesitate to alienate large sectors of their customer and client base by pouring large sums of money, at least if they must do so openly and visibly, into candidate campaigns even when their economic interests would clearly be better served by one outcome rather than by another.
There nonetheless seem to be real dangers that Congress ought to address in a systematic and non-hysterical way.
People who invest in business corporations, as opposed to contributors to ideological non-profits of the sort that Citizens United itself represented, don’t typically intend thereby to authorize the managers and directors of those corporations to use the money invested in their businesses to help some candidates win election to federal office or to hinder the efforts of others vying for positions of federal authority. Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose.
To be sure, the statutory and decisional laws of every state already create theoretical rights in individual shareholders to sue corporate boards under state law for making “wasteful” expenditures, expenditures that do not advance the corporation’s interests, but talk of shareholder democracy is largely illusory in a world where there are countless obstacles to vigilant oversight of corporate management by the widely dispersed “owners” of the underlying enterprise, especially when most of those owners have only the most attenuated link to their stock holdings, a link made all the more tenuous by the fact, noted in the Stevens dissent in Citizens United, that “[m]ost American households that own stock do so through intermediaries such as mutual funds and pension plans, . . . , which makes it more difficult both to monitor and to alter particular holdings.”
In the case of non-profit entities that take a corporate form as a matter of convenience but that have the understood ideological purpose of advancing certain political views and electing or defeating certain candidates, there is no fundamental problem of some people using other people’s money to amplify their own voices in candidate campaigns. But in the context of for-profit, business corporations, that problem is undeniable – and, given the power of Congress to regulate interstate commerce, it is a problem entirely appropriate for federal legislative attention. Indeed, there is at least some question whether states have constitutional authority to regulate corporate activity in connection with the election of federal officials, given the Supreme Court’s holding in the case of US Term Limits v. Thornton that states may not interfere with the uniquely federal relationship between citizens and their federal representatives. Even if strengthening the ability of shareholders to prevent their corporations from squandering their property in federal elections is deemed not to set qualifications for federal office and is thus distinguished from the kinds of state-imposed term limits struck down in the Thornton case, it seems plain that Congress may legitimately act under the Commerce Clause to enhance the efficacy of each shareholder’s ability to ensure that his or her investment is not deployed to advance or obstruct the election of particular candidates to federal (or, indeed, state) office contrary both to that shareholder’s own wishes and, more importantly in this context, to the corporation’s business interests.
Whatever individual states might do to beef up their shareholder protections with respect to corporate spending in state or federal candidate elections, federal legislation could usefully set both a nationwide floor of protection and a model for states to follow and build upon. Such federal legislation should, at a minimum, build on the disclosure and disclaimer requirements that the Court upheld by an 8-1 vote in Citizens United, requirements specifying that electioneering communications funded by anyone other than the candidate must disclose who is “responsible for the content of this advertising” and must display on screen “in a clearly readable manner” for at least 4 seconds the name and address or website of whoever funded the communication. Those requirements should not only be enlarged – a blink of an eye or a sip of beer would suffice to make a four-second display useless – but should also be made much more specific. The disclaimer should have to include a statement by the corporate sponsor’s CEO, by name, providing information about how much of the corporation’s general treasury was being expended in aggregate on the communication in question and certifying the CEO’s personal conclusion, as in Sarbanes-Oxley, that making the expenditure from general treasury funds, as opposed to making it through a corporate PAC, significantly advances the corporation’s business interest.
Among other things, the impact of a campaign ad, whether in the form of a 30-second spot or an extended production, would be cut down to size if it had to be (accurately) presented as a self-interested attempt by big pharma or by a cigarette or oil company or a bank holding company or hedge fund to influence the outcome of a candidate election for the benefit of the sponsoring company’s bottom line rather than masquerading behind a veil of public-spiritedness. The point, of course, would not be to undercut the force of corporate-funded ads – an objective that would itself be problematic from a First Amendment perspective – but simply to ensure that the channels of interstate commerce are not used in an inherently misleading manner.
This kind of disclosure requirement could be buttressed by the creation of a federal cause of action for corporate waste. Such an action in this setting – unlike the setting of the Violence Against Women Act, where the absence of a link to commerce proved constitutionally fatal a decade ago in United States v. Morrison – would be easy to defend as falling within Congress’s power over commerce. It could overcome some of the weaknesses that have hindered state corporate law in the past. For example, it could provide a greater incentive for suit, by offering statutory damages or treble damages (i.e., reimbursement of three times the challenged expenditure, part of which reimbursement would go directly to the plaintiffs rather than into the corporation’s coffers), as well as attorneys’ fees, and it could provide better deterrence by imposing individual liability for the corporate officers authorizing the improper political expenditure. And the “business judgment” rule making such cases notoriously difficult to bring under state law could be replaced with a rule less deferential to management and more focused on the existence of a convincing justification for using general treasury funds as such rather than relying entirely on PAC funds contributed by people with politics in mind.
Such a federal structure would not operate as a complete substitute for the provisions of McCain-Feingold that the Court struck down in Citizens United, but that is hardly an objection to this kind of legislation. On the contrary, the more completely a federal “fix” replicates what the Court held invalid under the First Amendment, the greater the danger that the Court would strike down the substitute as a thinly disguised end-run around its handiwork. So this is not a complete substitute, but it is an approach Congress should pursue, in a manner as bipartisan as McCain-Feingold itself, without delay.
Whatever one might think of the nationwide reluctance to embrace huge and costly new programs, and whatever lessons one might draw from the Scott Brown victory in Massachusetts in the special election of January 19, my guess is that the American people are ready, and indeed eager, for at least this kind of reform, reform which would suppress no political speech, entail no new bureaucracy, jeopardize nothing on which ordinary people now rely, do nothing to swell the national budget, enhance transparency rather than require back-room deals, and give nothing away to large aggregations of power and influence.
Laurence H. Tribe
Carl M. Loeb University Professor
Harvard Law School