The Supreme Court is expected to decide the case of Citizens United v. FEC in the coming weeks. At issue in this key campaign finance case is the constitutionality of the ban on the spending of corporate treasury funds to influence federal elections enacted in 1947.
(This is Part 7 of a series of releases issued by Democracy 21 that examine the Citizens United case. The series can be found at www.democracy21.org.)
The Supreme Court has consistently upheld campaign finance laws where the laws can be shown to serve the compelling governmental interest of preventing corruption or the appearance of corruption. These rationales, for example, have served as the Court’s basis for upholding the constitutionality of individual, party and PAC contribution limits, starting in 1976 with the landmark decision in Buckley v. Valeo.
“There has been some misunderstanding about what the Supreme Court means when it uses the term ‘corruption’ in cases involving the constitutionality of campaign finance laws,” according to Democracy 21 President Fred Wertheimer.
“Opponents of the campaign finance laws like to argue that the ‘corruption’ standard applies only to ‘quid pro quo’ corruption. But that kind of corruption is already prohibited by bribery laws and the Supreme Court has never interpreted ‘corruption’ so narrowly in campaign finance cases,” Wertheimer said.
“In fact, the Supreme Court has made clear for more than three decades that the term ‘corruption’ has a meaning that goes far beyond ‘quid pro quo’ corruption when used in campaign finance cases,” Wertheimer stated.
A principal issue in the Citizens United case is whether the ban on corporate expenditures is constitutionally justified on the grounds that it prevents corruption or the appearance of corruption, just as the Court has repeatedly held in cases upholding the constitutionality of contribution limits.
In his controlling opinion in Wisconsin Right to Life v. FEC (WRTL), a case decided in 2007, Chief Justice John Roberts wrote that the Supreme Court in its decision in McConnell v. FEC (2003) arguably had accepted the corruption rationale as a basis for upholding the corporate expenditure ban.
In discussing whether the corporate expenditure ban could be applied to corporate expenditures for ads which did not expressly advocate the election or defeat of a candidate, Chief Justice Roberts wrote for the Court:
This Court has long recognized “the governmental interest in preventing corruption and the appearance of corruption” in election campaigns. Buckley, 424 U.S., at 45, 96 S.Ct. 612. This interest has been invoked as a reason for upholding contribution limits…We have suggested that this interest might also justify limits on electioneering expenditures because it may be that, in some circumstances, “large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions.” Id., at 45, 96 S.Ct. 612. (emphasis added).
The Chief Justice further wrote:
McConnell arguably applied this interest-which this Court had only assumed could justify regulation of express advocacy-to ads that were the “functional equivalent” of express advocacy. See 540 U.S., at 204-206, 124 S.Ct. 619
But after stating that McConnell had arguably used the “corruption” interest to uphold restrictions on corporate expenditures for ads that contain express advocacy or the functional equivalent of express advocacy, the Chief Justice went on to conclude in WRTL that the interest in preventing corruption or the appearance of corruption could not be extended to restrict corporate expenditures for issue ads that did not contain such language.
Citizens United, unlike WRTL, is a case that deals with corporate expenditures that involve express advocacy and the functional equivalent of express advocacy. And as Chief Justice Roberts recognized in WRTL, “large independent expenditures” arguably can pose the same dangers of corruption as contributions do.
This recognition by the Chief Justice goes to the heart of the “corruption” argument for upholding the ban on corporate expenditures.
As noted above, the Supreme Court has made clear for more than three decades that the term “corruption” when used by the Court in campaign finance cases is not limited to “quid pro quo” corruption. The Court has similarly made clear that the appearance of corruption is itself a constitutional grounds for upholding campaign finance laws.
Both of these judicial principles were set forth by the Supreme Court in its landmark 1976 decision in Buckley v. Valeo upholding contribution limits. The Court said in Buckley:
Laws making criminal the giving and taking of bribes deal only with the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that disclosure was only a partial measure and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities and of the contributors and the amounts of their contributions are fully disclosed. (Emphasis added.)
The Court also stated in Buckley:
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 disastrous extent.’
The Court reaffirmed the views it expressed in Buckley in Nixon v. Shrink Missouri Government PAC (2000). The Court stated:
In speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors. (emphasis added)
The Court explained in Shrink Missouri why the appearance of corruption is its own constitutional basis for upholding contribution limits, stating:
Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.
The Supreme Court in its McConnell decision in 2003 cited Shrink Missouri in its discussion of “corruption” extending beyond “quid pro quo” arrangements to cover undue influence. The Court said:
Thus, “[i]n speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘quid pro quo arrangements,’ we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.” Shrink Missouri 528 U.S., at 389, 120 S.Ct. 897; see also Colorado II, 533 U.S., at 441, 121 S.Ct. 2351 (acknowledging that corruption extends beyond explicit cash-for-votes agreements to “undue influence on an officeholder’s judgment”).
Of “almost equal” importance has been the Government’s interest in combating the appearance or perception of corruption engendered by large campaign contributions. Buckley, supra, at 27, 96 S.Ct. 612; see also Shrink Missouri, supra, at 390, 120 S.Ct. 897; Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480, 496-497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). Take away Congress’ authority to regulate the appearance of undue influence and “the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”
The Court made clear in McConnell that corruption “extends beyond preventing simple cash-for-votes corruption.” The Court said:
More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing “undue influence on an officeholder’s judgment, and the appearance of such influence.” Colorado II, supra, at 441, 121 S.Ct. 2351.
Many of the “deeply disturbing examples” of corruption cited by this Court in Buckley, 424 U.S., at 27, 96 S.Ct. 612, to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. See Buckley, 519 F.2d, at 839-840, n. 36; nn. 5-6, supra. Even if that access did not secure actual influence, it certainly gave the “appearance of such influence.” Colorado II, supra, at 441, 121 S.Ct. 2351; see also 519 F.2d, at 838.
The majority opinion in McConnell, in rejecting Justice Kennedy’s view of the meaning of the “corruption” standard, further said:
Justice Kennedy’s interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation.
“A decision by the Supreme Court to strike down the sixty-year old ban on corporate campaign expenditures and to overturn the Court’s own precedents upholding the ban would be nothing short of a radical decision by a so-called ‘conservative’ majority on the Court,” Wertheimer stated.
“It also would be a radical act for the Court to reject more than three decades of Court precedents in a number of cases and rewrite the ‘corruption’ standard to limit it to ‘quid pro quo’ corruption. Such an action would render the ‘corruption’ standard meaningless as a practical matter in campaign finance cases, and would dramatically increase the opportunities for the corruption of our democracy,” Wertheimer said.