Yes, we must repeal Citizens United, but there is much more we need to do if we are to fix our broken campaign finance system.
By Mark C. Poloncarz
The 2016 Democratic Party’s primary season has been punctuated by a general agreement by Hillary Clinton and Bernie Sanders on many of the issues presented. You might not realize it from the statements of supporters to the contrary, but while they may disagree on a few matters they have much more in common on the core issues that face our nation, certainly more than their Republican counterparts.
One such area of commonality is their statements regarding what just might be the most well-known Supreme Court decision issued during the past decade. While the decisions affirming the Affordable Care Act or the right of gay and lesbian individuals to marry are exceptionally important ones, if you ask the average American to provide the name of either decision most could not do so.
However, if you attend or watch a rally by Bernie Sanders or Hillary Clinton you are bound to hear both say we must repeal the “Citizens United” decision. This will inevitably be followed by raucous applause by the crowd as they are whipped up into a frenzy regarding how their candidate will, upon his or her inauguration, instantly change the country for the better by repealing the decision. There is no doubt in the hearts and minds of the attendees the decision must be repealed and their candidate is just the person to do it.
They are all correct – the Citizens United decision must be repealed – the problem is you cannot repeal the decision overnight, and even if it could be done that in itself is not enough to create a better America: other decisions need to be reversed and the entire set of federal campaign finance laws needs to amended as well. Achieving both of these objectives will not be easy. To understand how we got to this place you need to understand the Citizens United decision and the other decisions which resulted from it.
Citizens United v. Federal Elections Commission is a 2010 case issued by the U.S. Supreme Court dealing directly with the question whether the First Amendment prohibits the federal government from regulating “speech” by independent third party associations. When most people think of speech they assume we are talking about actual speech: whether it be an oral statement or written document. However, under prior constitutional doctrines issued by the Supreme Court, speech includes the right to donate money to a candidate or political party. Put another way, money is speech.
The Citizens United decision did not set the standard that money equals speech; that precedent was set in the 1976 decision of Buckley v. Valeo. Citizens United instead removed the barriers that previously existed which prevented not-for-profit corporations and other associations from contributing amounts to influence political races. Because “associations” could also include for-profit business corporations and unions, it was assumed at the time the Citizens United decision was issued corporations and unions would start to donate unlimited amounts towards campaigns.
While corporate and union donations have increased, that has not created the problems we see today. In fact, the majority five to four opinion penned by Justice Anthony Kennedy in Citizens United ended up shattering the campaign finance system in ways we did not even foresee at the time, including rendering the Congressional Bipartisan Campaign Reform Act of 2002 (more commonly known as the McCain–Feingold Act or “BCRA”) basically moot. Citizens United set the stage for the unlimited donation Super PAC world of campaign finance we see today, but it did not in fact authorize Super PACs.
Based on the Citizens United decision, the U.S. Court of Appeals for the District of Columbia in the case of SpeechNow v. Federal Elections Commission actually struck down BCRA’s provisions and other federal laws which limited contributions to political action committees (“PACs”) that did not make contributions to political parties or specific candidates. Otherwise known as independent expenditures (or “IEs” in the political parlance of today), the court in SpeechNow held federal law could not limit donations to independent groups which did not directly go towards a candidate or party. Additionally, the SpeechNow decision held the identity and even the amount of contributions to IEs need not be reported.
Thus, following the standard set in Citizens United, the appellate court in SpeechNow authorized the unlimited but not identified spending by individuals and other associations we see today. Citizens United might have laid the groundwork, but it was the SpeechNow decision which spawned the Super PACs and “dark money” we see today.
The Citizens United and SpeechNow decisions were just the beginning. In 2011 the Supreme Court ruled states could not limit donations by corporations and unions in state elections (Western Tradition Partnership, Inc. v. Montana), and then in 2012 the Court also ruled the federal government cannot limit the aggregate amount of donations a person could make in an election cycle, though donation limits to individual candidates were still legal (McCutcheon v. FEC). The Montana and McCutcheon cases were decided by the same five to four majority that decided Citizens United, a majority that included the recently deceased Justice Antonin Scalia.
If either Bernie Sanders or Hillary Clinton is elected president, it is their stated intention to appoint justices to the Supreme Court who would repeal Citizens United. However, if you are going to return the political campaign finance system to the standards under BCRA, you also need to repeal the SpeechNow, Montana, McCutcheon and other decisions rendered by various federal courts. Doing so requires a case for the court decide upon, and cases do not move through the federal legal system in a short time. It can take years before a case makes its way from local federal district courts, to regional circuit courts, and then to the Supreme Court.
Even if President Barack Obama’s appointee Merrick Garland was approved by the Senate this year, which looks very doubtful though he is eminently qualified for the position, and he was inclined to overturn Citizens United and its progeny, it could be years before such a case came before the court. Thus, assuming a justice is appointed to fill the vacant seat left by Justice Antonin Scalia’s death and that justice wanted to overturn Citizens United, we would still be working under the current system until a case was decided by the Supreme Court, which could be years from now.
Furthermore, even if Citizens United and the subsequent decisions were overruled by the Supreme Court, Congress would need to totally rewrite our nation’s campaign finance laws. BCRA was eviscerated by the above-stated and other court decisions, and other federal and states laws have been amended to follow the recent court precedents. If a President Sanders or Clinton was elected, he or she would need to work with Congress to draft new laws which overturn the holdings of the Citizens United and other decisions, and it is doubtful a Republican Congress and Senate would go any further than necessary to change the current system, a system which benefits them.
Even if Democrats take over the Senate and House of Representatives, a Republican minority could filibuster any proposed new law in the Senate, thus leaving the system in a state of limbo. It took many years for the current convoluted and horribly unfair campaign finance system to be created, and it will probably take many more to fix it, that is, assuming Citizens United and the other decisions are repealed.
So the next time you hear supporters of any Democratic Party candidate say only their candidate has the internal wherewithal to repeal Citizens United, and change will happen on day one, remind them the candidate cannot do it by him or herself, it will take years for such a result to happen, and then we need a Democratic Congress to effectuate real change by redrafting the country’s entire campaign finance system. In other words, it is much easier to say you are going to change the system than to actually do so. Nevertheless, the current system is broken and must be changed, just do not expect it to happen overnight, or perhaps even by the end of the first Sanders or Clinton term.
Mark C. Poloncarz is the County Executive of Erie County, New York. Prior to entering public service in 2006, Poloncarz practiced law in New York, and his practice included advising clients on federal campaign finance laws.
Copyright Mark C. Poloncarz, 2016