Eight of the current Supreme Court Justices are known for their zeal in questioning lawyers. That tendency was on display last week during the oral argument over the constitutionality of an Arizona law known as the Citizens Clean Elections Act, a law that attempts to do a little something about campaigns in which one candidate has a great deal more money than the others. Roughly, the law says that the ones who are outspent should receive a modest subsidy from state funds. By the end of the questioning, however, it had become clear that a majority of the Justices will probably declare the Arizona law unconstitutional. In apparent frustration, Justice Stephen G. Breyer departed from custom and allowed himself a despairing comment about the Court’s treatment of campaign-finance laws, which he has long, and mostly futilely, defended. “It is better to say it’s all illegal than to subject these things to death by a thousand cuts, because we don’t know what will happen when we start tinkering with one provision rather than another,” he said.
The modern history of American campaign-finance reform began about a century ago, in the Progressive Era, when the Tillman Act of 1907 outlawed direct contributions to political campaigns by corporations. Congress tightened some regulations in response to the Watergate scandal, but, with the Buckley v. Valeo decision, in 1976, the Court began relaxing the rules. In that case, the Court asserted for the first time that an individual’s decision to spend money in support of a political cause was, like giving a speech or carrying a campaign sign, protected by the First Amendment. It is this metaphor—that money is speech—that is driving the current Court’s revolution in campaign-finance law.
In many other respects, this Court’s commitment to free speech is admirable. Earlier this year, Chief Justice John Roberts gave voice to the best American tradition of tolerance when he (along with seven colleagues) overturned a damage award against a fringe religious group. The Westboro Baptist Church, which, as it happens, is more of an extended family than an actual church, had launched one of its odious anti-gay publicity stunts near a funeral at which a mother and father were grieving the loss of a son in Iraq. Understandably, perhaps, a judge had awarded five million dollars in a civil suit brought by the father, but the Court recognized that such a judgment threatened the free-speech rights of all unpopular groups. “Speech is powerful,” Roberts wrote, but it was the Court’s duty “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The problem is that there is more than one way to stifle public debate. The idea behind limiting campaign contributions and expenditures is to insure that the voices of the wealthy don’t drown out the voices of those who are less well off. A surreal moment during the Arizona argument summed up how peculiar the Court’s campaign-finance jurisprudence has become. Springing a well-planned trap, Roberts told the lawyer defending the Arizona law, “I checked the Citizens Clean Elections Commission Web site this morning, and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?” To many ears, levelling the playing field hardly sounds like a sinister activity, worthy of the Supreme Court’s ultimate sanction. Indeed, as recently as 1990 the Court upheld a campaign-finance law because of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” But the Court explicitly overruled that decision last year in the Citizens United case. For better or for worse, Roberts is right: levelling the playing field is now verboten.
The implications of the Court’s approach are now becoming more clear. In the Citizens United case, the majority decreed, in an opinion written by Justice Anthony M. Kennedy, that corporations and other organizations could bypass the old limits by giving unlimited amounts not to candidates but to nominally independent groups that support them. (Corporations, of course, traditionally give more to Republicans.) But the logic of the decision—and the views expressed by the majority at the argument last week—suggests that in the future the Court will allow corporations to skip the third parties and give money directly to the candidates. It also implies that any limit on the size of contributions, by individuals or corporations, may now be held to be unconstitutional. The Court did suggest that requirements calling for the public disclosure of contributions might pass constitutional muster, but Congress shows no inclination to enact any such rules. President Obama’s DISCLOSE Act, which would have bolstered disclosure requirements, died in Congress last year. (Clarence Thomas, the silent Justice during oral arguments, believes that even disclosure violates First Amendment rights.)
During the 2010 campaign, Karl Rove pioneered the partisan exploitation of Citizens United by directing Republican donors to American Crossroads and American Crossroads GPS, his largely unregulated political operations. As he told Fox News, “What we’ve essentially said is, if you’ve maxed out to the senate committee, the congressional committee, or the R.N.C. and you’d like to do more, under the Citizens United decision you can give money to American Crossroads.” Rove’s organizations, which raised seventy-one million dollars in the 2010 cycle, have vowed to raise a hundred and twenty million for 2012. Crossroads GPS is supposedly limited to grass-roots activities and public-policy analysis—categories for which it is not currently required to disclose how much it raised or from whom. Needless to say, these categories are so broad that they can, in effect, function like campaign spending.
It is customary to point out that Citizens United also frees labor unions to make unlimited expenditures. Because unions generally favor Democrats, this observation is supposed to lend a gloss of bipartisanship to the Court’s reworking of a century of laws. But, these days especially, any notion of an equivalency of means between unions and corporations is, to put it mildly, far-fetched. So the vulgar truth about Citizens United, the doomed Arizona law, and related future cases remains: the five Justices appointed by Republicans are thrashing the four appointed by Democrats—to the enormous advantage of the G.O.P. Coincidence? You be the judge. ♦