The “Phantom Menace:” A Campaign Finance Prequel

Appeared on the American Constitution Society Blog

Even as Supreme Court nominee Sonia Sotomayor’s campaign finance credentials are brought to light, reform-minded court-watchers are on pins and needles as to what the next big Roberts’ Court decision in that area will be. The Supreme Court is poised to decide this week a critical case for the future of campaign finance reform efforts.

The case, called Citizens United v. Federal Election Commission, is a challenge to part of the 2002 Bipartisan Campaign Reform Act (popularly known as “McCain-Feingold”) – the ban on corporate spending on broadcast campaign ads – asking whether it also prohibits the spending of corporate dollars on a 90-minute on-demand broadcast of “Hillary: The Movie.” As its name implies, the documentary film was originally intended to torpedo “Hillary: The Presidential Candidate” at a time when she was the top contender in the Democratic primary.

At least one member of the three-judge lower court reportedly snickered aloud at oral argument when asked to consider that the movie, which features the likes of Ann Coulter and portrays Clinton as “steeped in sleaze,” was not an assault on her qualifications for office. In the most recent case considered by the Supreme Court on campaign finance, Wisconsin Right to Life II, the court concluded that an ad that questions the qualifications or character of a candidate for federal office was rightly subject to the ban.

Yet March’s oral argument in the Supreme Court was humorless. Many reformers grew deeply worried about where the court was headed after the Deputy Solicitor General Malcolm Stewart took up its invitation to speculate about whether a similar ban could reach books downloaded on Kindle or other, non-broadcast media.

The “what-ifs” posed by the Supreme Court utterly disregarded the specific terms of the reform, the 2002 so-called “McCain-Feingold” law, which extended only to “broadcast advertisements.” Although its 2003 opinion did not rule out other regulations, the decision to uphold the law focused on the problem at hand: corporate spending on television ads that overwhelmed the airwaves during election season.

In that decision not too long ago, the Rehnquist-led Court acknowledged congressional concern over the “corrosive and distorting effects of immense aggregations of wealth … [on expenditures that] have little or no correlation to the public’s support for the corporation’s political ideas.” The court also noted that the provisions were justified to stop the circumvention of other limits on corporate spending on elections, which has been generally prohibited in federal races since 1907.

Fast-forward six years and it is now another day, another dollar in the Supreme Court. The Citizens United oral argument was full of flights of fancy about entire categories of speech no one had actually imagined were at issue, including books.

But the court’s parade of horribles did not instruct so much as obscure the questions before it. While the Justices could simply have asked whether the term “advertisement” applies to a full-length movie, or whether “on-demand” communications are distinct in nature from general broadcasts (they might be), the court instead showed a dangerous, and not very “umpire-like,” tendency to look past the terms of the statute to the great unknown.

If the First Amendment or any other constitutional provision is considered in the abstract, untethered from its concrete and specific goals, then any mere law – including McCain Feingold – has little chance of measuring up. Indeed, the version of First Amendment absolutism that this court appears to practice, and may apply here, is in stark contrast to the sober assessment of practicalities, and balancing of competing goals, that every prior court since Buckley used to evaluate campaign finance rules. But freelancing – even when it comes to questions regarding the reach of the First Amendment – is hardly what we expect of our courts.

The question of how to adapt statutes written for a previous age to fit new technologies – i.e., whether there is any conceivable corruption interest in books purchased and downloaded to a Kindle – is not a question best first addressed in a courtroom at oral argument, but by a legislature or regulatory body charged with solving a specific harm, and proposing a particular plan to address it.

It is obviously the case that major adaptations in campaign finance law – as in many other areas – will follow in the wake of tectonic shifts in how we share and process information. And it is likely that new rules will need to be evolved to grapple with corruption concerns, where they do persist.

Persist they will, because where there is power, there will be those who try to corrupt it. Recent scandals, such as those in the rotten mortgage bond market or the attempts to sell a U.S. Senate seat in Illinois, show that addressing both actual and possible political corruption remains a pressing concern for the health of our democracy.

Web-based tools mean that it will be easier and simpler than ever before to report and track information about contributions and other campaign spending, which may actually shift the balance in favor of regulation. The real issue is not whether one may draw lines around protected and prohibited categories of communication, but who is best suited to develop and draw those lines. Should it be Congress and the Federal Election Commission? Or should it be the court?

The mere existence of novel media does not somehow render obsolete the concern, dating back to the Constitutional Convention, of how to balance the access of special interests to public institutions and officials to make them less prone to corruption, capture and other delegitimizing influences. Thoughtful campaign finance rules demand a reconciliation of First Amendment protections with the equally serious need to check political corruption and the appearance of such corruption.

This court, as well as any future composition of it, would do well to decide cases in the campaign finance area carefully, based on the statute before it and the weight of precedent. We hope that this week, and in the future, it will allow the other branches of government to adapt this part of the law to changing circumstances, rather than allowing the shadow-boxing possible in oral argument to gain substance in constitutional precedent.