In January 2010, the nation’s highest court issued its opinion in the Citizens United campaign finance case, its most controversial ruling in this century. Yet despite the widespread criticism it has provoked, the full meaning and impact of this decision is still poorly understood by political leaders and the general public. While the court’s specific holding—that corporations can spend independently of candidates in elections—is widely recognized, its underlying constitutional rationale is rarely discussed. This is important because that rationale has nearly erased the court’s longtime standard for evaluating campaign finance restrictions, casting a shadow over every local, state, and Federal effort to control money in politics. In just seven years, the role of the wealthy few in financing Federal elections has increased geometrically.
Why has so little attention been paid to this legal transformation? Certainly, America’s byzantine system of campaign finance regulation makes it difficult for observers to comprehend the significance of judicial decisions. But in this case, the Supreme Court itself has been the primary obfuscator. Even as it has claimed to be largely following its long-reigning campaign finance precedent—Buckley v. Valeo (1976)—it has rather surreptitiously undermined Buckley’s justification for campaign finance regulation.
How Citizens United and its Descendants Changed the Game
In Citizens United, the court reaffirmed Buckley’s ruling that campaign spending that is not coordinated with a candidate does not pose a sufficient danger of corruption—or its appearance—to justify government intrusion into freedom of expression. However, it failed to take account of Buckley’s important qualifier that there was not “presently” such a danger in 1976, when only $15,802 had been spent independently in the 1974 congressional elections. The court then took one further step. It extended the independent spending umbrella, which covered individuals and non-corporate associations, to corporations, thereby invalidating a Federal law (Buckley had not considered this issue).1
Yet contrary to much political conversation, for-profit corporations have not become the leading independent spenders in elections. Rather, the primary actors are new political committees, commonly called “super PACS.” Next, but of much less importance, are tax-exempt nonprofits (social welfare organizations and trade associations, often adopting corporate forms, and labor unions). Dubbed “dark money groups” because, unlike super PACS, they are not required by Federal regulators to disclose their donors, these organizations have long participated in campaigns as secondary activities. Before Citizens United, they, as well as for-profit corporations, were permitted to run “issue ads” tearing down or building up candidates—so long as they avoided “magic words” of “express advocacy” like “vote for” or “vote against.” They were also, with limited exceptions, prohibited from mentioning the names of candidates in television and radio spots 30 to 60 days before primaries and general elections. However, with the court’s enabling of independent corporate spending, these moderate restraints have disappeared. So Citizen United did not create super PACs or dark money groups, or introduce corporate electioneering. What it really did was allow nonprofits and for-profit corporations to make more explicit “vote for” and “vote against” appeals at any time.
What proved truly revolutionary in Citizens United was not its specific holding—which, just by the way, went well beyond what the case required—but its underlying legal rationale.2 In the court’s 5-4 majority opinion, Justice Anthony Kennedy recalled Buckley’s characterization of corruption: “To the extent that large contributions are given to secure a political quid pro quo from current and potential officeholders, the integrity of our system of representative democracy is undermined.” He then interpreted this sentence narrowly as referring to something akin to criminal bribery. He emphasized that a Federal judge in the important 2003 McConnell campaign finance case did not find, in a more than 100,000-page record, “any direct examples of votes being exchanged for . . . expenditures.” Therefore, he concluded: “This confirms Buckley’s reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.” By making it more difficult to establish a threat of corruption, the court made it harder to justify campaign finance restrictions. Ironically, then, the Court achieved its reaffirmation/extension of Buckley’s holding on independent spending by constricting Buckley’s definition of the kind of corruption the government could legitimately regulate!
The broader impact of this new interpretation became manifest just two months later when the U.S. Court of Appeals for the District of Columbia Circuit decided the comparatively unknown SpeechNow case. The court unanimously ruled that the Federal government could no longer enforce its $5,000 limit on the amount a donor could contribute to an independent spender. The opinion argued that Citizens United had been faithful to Buckley’s original definition of corruption “that focused on quid pro quo.” In contrast, certain intervening cases, such as McConnell, had “expanded the concept to include the ‘appearance of undue influence’ created by large donations given for the purpose of ‘buying access.’” Without further analysis, the Court simply deduced that since Citizens United held that “independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot….”
The Court’s opinion contained no separate discussion of the donors to independent groups who, unlike the groups themselves, are free to discuss or prearrange their efforts with benefiting candidates, and even to contribute directly to their campaigns. It took no account of Buckley’s famous analysis that reasonable restrictions on contributions were lesser threats to freedom of speech than ones on expenditures because donors did not speak themselves. Thus, it seems fair to conclude that while Citizens United inspired the DC Circuit court’s deductive decision, it did not compel it. Nevertheless, by 2013, five other Circuit Courts had cited SpeechNow in issuing similar preliminary or final rulings.
It was these appellate courts’ unshackling of wealthy donors that spawned super PACs and powered the enormous surge in independent expenditures. The latter more than quadrupled between the 2008 presidential and congressional elections and the 2016 ones, according to the Center for Responsive Politics.3 By the 2016 election cycle, mainly super PACs, but also nonprofits and assorted corporations, individuals, and other groups, were spending $1.43 billion—about 22 percent of the total cost of the elections. Even these figures underestimated their impact, because super PACs, which spent $1.1 billion, concentrated their efforts on the most competitive races, especially those for the Senate and the presidency. (Donald Trump was less dependent on super PACs than Hillary Clinton during his unorthodox general election campaign, but this was the exception that proved the rule.) Most important, there was little that was democratic about this spending. Super PACs were overwhelmingly financed by contributions from the wealthy few. In the 2016 cycle, the top 1 percent of donors (516 individuals or organizations) provided 76.5 percent of the funds raised and the top hundred givers supplied 61 percent.
And the beat went on. In the 2014 McCutcheon case, the Supreme Court overturned a third Federal limit, one that capped a person’s aggregate contributions to all candidates, parties, and other political committees at $123,200 per two-year election cycle. Buckley had upheld the original provision as preventing donors from circumventing limits on contributions to a candidate by donating to multiple political and party committees that were likely to support their favorites. In the Court’s plurality opinion, Chief Justice John Roberts referenced Citizen United’s narrow interpretation of Buckley. “Any regulation,” he declared, “must . . . target what we have called ‘quid pro quo’ corruption or its appearance. . . . That Latin phrase captures the notion of a direct exchange of an official act for money.” This narrow interpretation of Buckley now contributed to the Court’s overturning of one of Buckley’s holdings (the reversal was also based on the Court’s finding that legal and regulatory changes since 1976 had obviated the danger of circumvention).
Buckley vs. Citizens United et al.
It is not just that the Supreme Court has been tampering with Buckley’s definition of corruption. It has also quietly disregarded its key conclusions on the relevance of real-world harbingers of corruption and the importance of preventing the appearance of corruption.
A close examination of the Buckley opinion finds support for Citizens United’s and McCutcheon’s emphasis on quid pro quo corruption, but not for confining the meaning of that phrase to “direct examples of votes being exchanged for . . . expenditures” or “a direct exchange of an official act for money.” It reveals that, unlike the contemporary Court, Buckley gave strong weight to independent evidence of access and influence-seeking by those pursuing obvious policy and personal interests because this signaled a danger of corruption. Finally, Buckley was distinctive in viewing “the appearance of corruption”—an inherently lower standard than corruption for justifying government regulation—as “of almost equal concern as the danger of actual quid pro quo arrangements.” By misinterpreting a portion of Buckley’s anti-corruption rationale and refraining from discussing its other key premises, the Court recast its jurisprudence on campaign finance regulation.
In the first section of its opinion, Buckley determined that the government had “a constitutionally sufficient interest” in preventing corruption and the appearance of corruption “spawned by the real or imagined coercive influence of large financial contributions on candidates’ positions and on their actions if elected to office.” Regarding actual corruption, it stated, “To the extent that large contributions are given to secure a political quid pro quo from current and potential officeholders, the integrity of our system is undermined.” Like Citizens United and its progeny, this definition highlighted the central problem of quid pro quos. But unlike them, it made no reference to a direct exchange of money for an official act, which is of course the focus of anti-bribery laws.
Indeed, the Court specifically rejected the argument that such laws offered a less restrictive means than contribution limits of combatting “proven and suspected quid pro quo arrangements.” It stated, “the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action.” Neither the Citizens United nor the McCutcheon opinions take note of this passage. Unfortunately, the original opinion did not elaborate on its statement, but its words clearly implied that there were subtler “quid pro quo arrangements” than those subject to anti-bribery prosecutions. Consider the current Federal anti-bribery law. It contains specific terms that can be used to target: whoever “gives, offers, or promises” contributions to an elected official “with the intent to influence an official act” or an elected official who “demands, seeks, receives, or accepts” contributions “in return for being influenced in the performance of an official act.” It is not difficult to imagine how a donor or officeholder could evade their application via the proverbial winks and nods or by employing more nuanced tactics to achieve the same quid pro quo.
This is approximately what Deputy Solicitor General Richard Friedman told Justice Potter Stewart, the author of this section of the opinion, during the oral argument of the case. Stewart had argued, “[I]nsofar as [money] is used to buy people to vote, that is covered by other criminal statutes.” Friedman responded, “[Those statues cover] purchasing a vote in the crude sense, if it is bribery. But there are often subtle influences that . . . may not come to the purchase of a vote, but which may nevertheless have the same effect.” This idea resonated in the first draft of Stewart’s opinion, found among the Justice’s papers. After the reference to the limitations of anti-bribery laws that appears in the final opinion, the draft added: “Experience teaches that such laws are inadequate to police more subtle understandings and logic suggests that they have no effect on the use of the club of massive contributions to influence the candidate’s stance on public questions.” This sentence, along with a few others elaborating on the discussion of corruption, was deleted in the second draft that Stewart sent to his colleagues. At the time, his clerk reported to Justice Lewis Powell’s clerk that this second draft was “greatly reduced in length but not changed in substance.” Unfortunately, this seems to be a place where a concern for concision weakened the opinion. What remains clear in the Court’s opinion is that quid pro quo was more than bribery.
In his remorseful 2011 book, Capitol Punishment, ex-lobbyist and convicted briber Jack Abramoff discusses informal arrangements that resemble what Justice Stewart’s draft called “more subtle understandings.” Abramoff writes: “As a lobbyist, I thought it only natural and right that my clients reward those members who saved them such substantial sums with generous contributions. This quid pro quo became one of the hallmarks of our lobbying efforts. . . . The early, grateful contributions by the [Indian] tribes soon led to contributions designed to create gratitude on the part of the member.”
Clearly, one way to realize an effective quid pro quo without falling afoul of bribery laws is for a candidate to solicit donations from those seeking official favors and, upon election, direct relevant agencies to meet with the donor, file progress reports on negotiations, and hopefully come to an agreement with him. As I write, a well-researched front-page story in the New York Times (July 24, 2017) reports that this is what happened in New York City when Mayor Bill de Blasio tried to assist a major donor who was having difficulty paying for his lease on city property.
Detecting the Danger of Corruption
It has been remarkably little noticed, but in contrast to Citizens United and its descendants, Buckley considered certain real-world cases of influence-seeking that clearly fell short of quid pro quo corruption as evidence strengthening the case for anti-corruption regulation. Buckley stated, “Although the scope of such pernicious [corrupt] practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.” A footnote referred to a page of text and three long notes from opinion of the DC Court of Appeals, which “discussed a number of the abuses uncovered after the 1972 elections.”
Remarkably, almost all of these examples—which were drawn from an investigative report by the U.S. Senate’s Select Committee on Campaign Activities and factual findings agreed to by the parties to the case—plainly lacked the characteristics of quid pro quo corruption. Either there was no decisive evidence of a “quid pro quo arrangement” or the specific quos donors might be pursuing had not yet been identified. What was clear, however, was the general political interests of the donors and the relevance of the recipients of their contributions. Donors were portrayed as seeking or obtaining access to officeholders whom they hoped would use their influence to benefit (or prevent harm to) the donors’ interests in the future.
“Looming large” in congressional and public perceptions, the appellate judges recounted, was “the revelation concerning contributions of dairy organizations to [President Richard] Nixon fundraisers, in order to gain a meeting with White House officials on price supports.” Nixon himself later met with dairy representatives and promptly overruled his Secretary of Agriculture on raising price supports. But the judges made no attempt to link the quid of contributions to the quo of official action. “It is not material for present purposes,” they wrote, “to review . . . the controverted issue of whether the President’s decision was in fact, or was represented to be, conditioned upon or ‘linked to’ the reaffirmation of the pledge [to provide $2 million to the President’s re-election campaign].” The donors got access and possibly influenced policy, but there was no proven quid pro quo.
Next, the appellate court discussed “lavish contributions by groups or individuals with special interests to legislators from both parties.” In 1973-74 campaign season the American Dental Association donated $60,500 to 32 of the 37 California House incumbents who faced major party opposition: 17 Democrats and 15 Republicans, ranging from conservative Republican Barry Goldwater, Jr., to liberal Democrat Ron Dellums. In the same period, H. Ross Perot, whose company was one of the largest suppliers to the government of data processing for Medicare and Medicaid programs, contributed $50,000 to members of the House Ways and Means and Senate Finance Committees and to a House Appropriations Subcommittee, all of which had some jurisdictional responsibility for those programs. The court also highlighted testimony by corporate executives who made illegal contributions either as “a calling card, something that would get us in the door and make our point of view heard,” or for fear that not responding to a campaign solicitation would result in “a competitive disadvantage.” In all of these instances, the donors provided quids but there were no identifiable quos beyond the hope for access and future favorable treatment for their interests.
Lastly, the Court noted “the scale and volume” of President Nixon’s appointment of large contributors to ambassadorships and “the widespread understanding that such contributions were a means of obtaining the recognition needed to be actively considered.” It acknowledged that the fundraisers “routinely advised that only the President could guarantee nomination.” Here there was an identifiable quo in the distance, but your quid only got you on a list for consideration.
How then did these examples show that the “problem” of corruption was “not an illusory one”? The answer would have been clearer had the court addressed this question explicitly. Still, the only reasonable inference consistent with Buckley’s repeated reference to corruption as involving “quid pro quo arrangements” is that these large donors’ strivings for access and influence were danger signs of potential corruption. They were, so to speak, the canaries in the coalmine. As previously mentioned, the Court prefaced its reference to the Circuit Court findings by noting that “the scope” of corrupt practices “can never be reliably ascertained,” indicating how hard it was to document actual corruption. And after referring to the Circuit Court’s examples, the next sentence in the opinion begins, “Of almost equal concern as the danger of actual quid pro quo arrangements. . . ” [emphasis added]. This is additional evidence that the court viewed these examples not as corruption but potential harbingers of corruption, further justifying government regulation.
The Significance of “Appearance of Corruption”
Buckley held that “the appearance of corruption spawned by the…imagined coercive influence of large financial contributions” was a constitutionally sufficient justification for contribution limits. “The impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual contributions” was “of almost equal concern as the danger of actual quid pro quo arrangements.” Therefore, “Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical…if confidence in the system of representative Government is not to be eroded to a dangerous extent.’”
Thus, to pass constitutional muster, the government had only to convince the Court that it was preventing contributions that the public could reasonably imagine were corrupting. Some of the aforementioned examples from the DC Circuit Court might well fit this criterion. To see how this lower standard for constitutional action might broaden the current anti-corruption rationale, consider the potential impact of amending Chief Justice Roberts’s statement in McCutcheon to read “the appearance of a direct exchange of an official act for money.” [emphasis added]. Yet Citizen United’s trail of decisions give only perfunctory attention to apparent corruption.
The appearance standard was so important that it became the deciding factor in Buckley’s dismissal of an “overbreadth” challenge to the law limiting an individual’s contribution to a candidate to $1,000 per election. The argument was that since most large contributors do not seek improper influence, this limit was disproportionate to the threat. In response, the Court underlined that broad restrictions on contributions were mainly justified by the interest in “safeguarding against the appearance of impropriety.” In other words, apparent corruption occurred much more frequently than actual corruption, justifying more far-reaching government controls.
The Price of Deflection
Often the Supreme Court divides over whether a precedent is being correctly applied. For example, the McConnell campaign finance case upheld Congress’s ban on unlimited “soft money” contributions to political parties for partisan voter identification, registration, and get-out-the-vote campaigns, and for “issue ads” that mention candidates. In that case, the majority invoked Buckley’s concepts of the harbingers and appearance of corruption to uphold a prohibition on trading large party contributions for access and influence. Justice Kennedy’s minority opinion protested that Buckley concerned quids that were solicited by a candidate or official who could deliver a quo, not those otherwise received by his or her party and not spent directly on his campaign. Kennedy also insisted that regulating contributions to prevent mere access and influence exceeded Buckley’s quid pro quo standard. Both sides presented plausible arguments for their positions.
In contrast, the majority opinions in Citizens United and its descendants have unfolded by declaration, deduction, and disregard. The present Supreme Court has misread Buckley’s definition of corruption. More fundamentally, it has declined to confront Buckley’s full anti-corruption rationale. In the process, the Court has helped keep the public in the dark about where it is going on campaign finance regulation and, just as important, what it is leaving behind. This has impeded broad political discussion of the appropriate criteria for the regulation of money in politics. Thus, even if Citizens United were overturned by the Court or by a future constitutional amendment, Congress has given little thought to what kinds of campaign finance restrictions it might pass on the day after.
Furthermore, the Court’s passive-aggressive approach to Buckley opened the way for the D.C. Circuit Court and its followers to go beyond Citizens United by allowing unlimited contributions for independent expenditures. The SpeechNow decision gave birth to super PACs. Had Citizens United dealt squarely with Buckley’s anti-corruption rationale, it would have likely addressed Buckley’s fundamental distinction between contributions (“symbolic speech” that can be more easily regulated) and expenditures, rather than leaving the issue to be decided by the deduction of an appellate court. Seven years later, we still do not know where the Supreme Court would come down on this fateful issue or whether it will rule on it in the future.
Finally, had the Citizens United majority spoken more forthrightly, it would have elevated the Court’s internal debate. The four dissenters candidly expressed their desire to expand Buckley’s definition of corruption. For them, donors’ general efforts to gain access to and influence over officeholders—even without the identified political interests and relevant official targets described in Buckley’s footnoted examples—were part of a “spectrum” of corruption where “the difference between selling a vote and selling access is a matter of degree not kind.” In the end, both the majority and the minority were dealing with, or circling around, the central elements of Buckley’s anti-corruption rationale: the nature and relevance of quid pro quo corruption, the significance of the appearance of corruption, and what other kinds of influence-seeking might justify regulation to prevent corruption and its appearance. Had the majority directly challenged Buckley’s key premises, it would have clarified its differences with the minority. Possibly, the ensuing discussion might have narrowed the gap between them. That still happens sometimes, when ideas openly duel. It cannot happen when serious people duck genuine debate.
1This article does not discuss the separate category of political party independent expenditures.
2See Nathaniel Persily, “The Campaign Revolution Will Not Be Televised,” The American Interest (November/December 2015).
3https://www.opensecrets.org/outsidespending/ accessed July 15, 2017. Figures in this paragraph are drawn from browsing choices on this web page.