The Distillery: Tribe on Citizens United: Right Result, Wrong Logic

Laurence Tribe argues Citizens United was right on the merits, but wrong on the rationale. Yet, he finds some hope for campaign finance reform in a more recent Supreme Court decision.

August 31, 2015

The Distillery: A Money in Politics Digest will provide a periodic look at the latest legal research in the ongoing national debate about the role of money in politics.

In a recent symposium article, Harvard Law Professor Laurence Tribe takes a new look at Citizens United, one of the more widely misunderstood recent Supreme Court decisions. Tribe tackles the distinction between the actual dispute behind the case and the logic the Court used to resolve it. And while he describes that reasoning as “bizarrely cramped and naïve,” he also offers an interesting observation for how to extricate ourselves from the campaign finance morass the Court created – a path the Court itself illuminated in its recent decision to uphold a ban on personal fundraising by judges.

Tribe argues that the outcome in Citizens United was correct. That is, the conservative nonprofit group Citizens United should have been allowed to air its anti-Hillary documentary right before the 2008 election on DirecTV. Coming from a well-known liberal legal scholar, this conclusion might seem surprising.  But after all, Tribe notes, a decision to prevent a politically-themed film from being aired to paid subscribers could very well open the door to other, more troubling forms of government censorship.

While agreeing with the outcome, Tribe roundly criticizes the Court’s logic in reaching it.  Indeed, Citizens United (along with several other Roberts court campaign finance decisions) reflects a view of politics that few Americans would recognize, much less agree with.  It’s a process in which election spending flows freely, subject only to limits that target a very specific type of corruption: quid pro quo (bribery to the rest of us). Anything less just isn’t corruption.

Tribe understandably laments the Court’s narrow view of the democratic interests at stake in how campaigns are financed. It has allowed a furious swarm of unregulated money into the political system, often from new (and newly unlimited) sources, some of which can legally keep their donors secret.  It has also given short shrift to the values that are essential to a healthy democracy.

Tribe gives a nuanced summary of the competing interests. On the one hand, freedom from censorship and skepticism of a government that manages its own admissions process are critically important.  But on the other hand, so too are effective representation and the ability of all – regardless of wealth – to meaningfully participate.   

Also important, he notes, is the public’s concern for how all this money affects those who are elected to public office. Indeed, that anxiety recently motivated the Court to agree with the Florida Bar that judges may be prohibited from personally soliciting donations to their election campaigns. The Court in that case – Williams-Yulee – was persuaded that maintaining public confidence in the judicial process trumps judges’ right to personally raise campaign cash.

Perhaps, Tribe speculates, this aberration in the Roberts court’s otherwise unbroken streak of hostility toward campaign finance regulation simply reflects its view that judges are special and must be seen by the public as “apolitical umpires.” But why, then, is the public’s confidence in a fair and transparent political process any less important?  It’s a distinction that Tribe finds difficult to explain and one he hopes will eventually be erased by the Court.

For campaign finance reformers, it’s difficult not to feel cornered by the current Supreme Court. Quid pro quo corruption is a slender reed on which to lean this important body of law.  But perhaps, as Tribe suggests, the Court tipped its hand in Williams-Yulee to reveal an alternative justification for reasonable campaign finance regulation.  Perhaps the Court has forged a new path forward that could result in a broader and also more nuanced view of the First Amendment.  A direction that protects all democratic values and doesn’t limit important rights by one’s ability to afford them.

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