Citizens Disunited: Part I

Iv(or)y and Newsprint

The Supreme Court has decided Citizens United v. FEC, siding with Citizens United and dramatically increasing the power of corporate entities, both for- and non-profit, to donate to political campaigns. It’s a complicated issue, so we’re putting on both our academic and our journalistic hats for the response.

Keith Olbermann was predictably apoplectic. Andrew Cohen was forlorn. E. J. Dionne called for a mass resistance movement. Even the White House weighed in, suggesting that the decision was an assault on the fabric of our democracy. On the other hand, Megan McArdle found the proposal "sensible", Anthony Dick was sanguine about the ruling's consequences over at NRO, and Jeff Jacoby was downright enthusiastic. In determining the path to the decision, Robert Barnes focused on the Kennedy factor and Howard Schweber cried "judicial activism" over at HuffPo. Dahlia Lithwick was incredulous. Only Nathaniel Persily has been circumspect enough to ask and answer the obvious: does this actually change anything?

All of this is probably much ado about nothing. If we move beyond the histrionic responses, a different picture of the decision emerges. The decision raises three questions: one, what are its political consequences; two, what are its legal implications; and three, what does it mean for inter-branch relations? Answering all three in one post would be too much, so today we’re focusing on the politics.

On the face of it, the court has overturned several parts of the McCain-Feingold Act, more properly known as the Bipartisan Campaign Reform Act (BCRA) of 2002. What are the ruling’s political consequences? In a word: “zilch.” Contrary to what most of the media is saying (i.e., either this is beneficial or this is Armageddon), I expect few political ramifications from the case in terms of actual influence. Despite all the ballyhoo and panic, rampant donation is already being done.

So where do the chattering-turned-panicking classes get it wrong?

First, the idea of a monolithic cabal of “the corporations” is ludicrous. Unlike, say, “the unions,” the corporations are a notoriously promiscuous bunch, frequently giving to both parties and even to rival candidates. Moreover, as much of the political science research available indicates, politicians rarely operate in a direct pay-to-play manner. Rather, donations guarantee access, but not outcomes. This may exacerbate what Ted Lowi has called interest group liberalism’s “socialism for the organized, capitalism for the disorganized,” but a matter of degree is not the difference between night and day.

Second, most of the commentary assumes that the controls on campaign finance contained in BCRA are working. They’re not. They never have. Beginning in 2004, high level coordination between the parties and 527 issue advocacy groups effectively nullified the restrictions on corporate and private donations. Though legally independent of one another, the parties and the 527 groups have shared personnel and coordinated to an extent that makes a mockery of BCRA’s purported donation limits. Indeed, in 2005 the FEC fined both MoveOn and the Swift Boat Veterans for Truth for their direct coordination with the parties.

Given wanton flouting of the existing system, the decision may pave the way for improved transparency. First, it allows the parties to retake the lead in fundraising, should they choose to do so. This will permit them to cut their satellite 527 groups and instead assume direct responsibility for fundraising and, more importantly, reporting.

Most politicians are content pretending that 527 issue advocacy groups are substantively distinct from political parties and lobbying organizations, but party leaders have chafed at their inability to use campaign funds as a disciplinary tool. Mass communication has made party labels more important at a time when party control has been tremendously weakened by the current campaign finance system. Under these conditions, responsible government requires stronger parties to help override what political scientists call ascendant “individual pluralism” in Congress.

Second, reporting requirements for parties, which are already fairly strict, could easily tighten if the decision arouses popular anxiety, obliging Congress to pass further transparency rules to “safeguard against a corporate takeover” of our democracy or some such nonsense. Don’t expect E. J. Dionne’s pipe dream of a new populist-progressive alliance to appear any time soon, but we may see some legislation to improve transparency. Dahlai Lithwick, this time with the assistance of Barry Friedman has anticipated just such a reaction.

Serious reform on the issue would be welcome: the existing transparency regime under BCRA has been bucked successfully by a number of organizations, dating back at least to 2004. While filings are interesting and sometimes revealing, they are as yet insufficient.

However, substantive campaign finance reform entails either taxing 527 groups or refusing to make donations to them tax deductible (so that they become indistinguishable from 501(c)4 groups). If the Congressional proposals that emerge in the wake of the decision lack one of these components, they’re not serious efforts at reform.

Third, many commentators seem to view BCRA as a pro-democracy measure, a method of controlling the special interests. This is true to an extent, but it’s really a mechanism designed to control any interest except for the incumbent’s.

Currently, BCRA functions as an incumbent insurance program by creating fundraising impediments for prospective challengers. The nasty underside of campaign finance reform is that it exacerbates the incumbency advantage and actually entrenches extant centers of power. While there’s no guarantee that Citizens United will do anything to change this, opening up the process to more donors is unlikely to make it any more a free ride for incumbents.

Fourth, and finally, an exception to my rather blasé assessment of the political impact of Citizens United: federalism. Strong support for a heavily rights-centered jurisprudence anchored in the Bill of Rights is, by implication of incorporation, restrictive of the powers of state governments. If incorporation means anything, then Citizens United must imply the elimination of state-by-state restrictions on campaign finance.

I’m less than thrilled about this side of the decision, as it seems to further vitiate state self-governance. However, as we’ll suggest in a forthcoming “legal implications” entry, this anti-federalism comes along with so capacious an interpretation of the First Amendment. If pornography, money, and what would conventionally be called obscenity can all make claims to First Amendment protections from the federal government, then states looking to change the terrain are out of luck. So long as the republican government clause is non-justiciable, the Courts will be siding with individual rights over the democratic political process. This paradox strikes jurisprudential and political liberalism to its core. The chickens, in this sense, are coming home to roost.