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© Frank


Citizens United: Explained

by Ron Fein
December 15, 2020

This interview with Ron Fein, the legal director of Free Speech For People, was conducted and condensed by franknews.

Ron | Free Speech For People a non-profit, non-partisan organization that was founded in January 2010. Our mission is to fight for free and fair elections, to fight against the influence of big money in politics, and to hold those in power in government accountable.

frank | Can we start with the Citizen United decision? How did that ruling impact the capacity for free and fair elections? 

Before the Citizens United decision, the Supreme Court had allowed certain limits on campaign finance for several decades.

The 1976 Buckley v. Valeo decision set a framework that was problematic in itself, but under it the nation was able to shamble along with campaign finance restrictions to some extent.

In Buckley v. Valeo, the Supreme Court said that the public could limit the amount of money being contributed to a campaign. They did so, not because there was an interest in pursuing the promise of political equality and “one person, one vote,” but because of an interest in preventing corruption, or preventing the appearance of corruption.  Under that framework, the Court allowed for some meaningful campaign finance reform. The high watermark of that was the Bipartisan Campaign Reform Act, commonly called the McCain-Feingold Act, which was upheld by the Supreme court in 2003.

However, shortly after that decision, there were changes in the composition of the Supreme Court, and the Court began to cut back what restrictions were allowable. They did two major things. First of all, they said that the only reason that campaign spending could be limited was to prevent quid pro quo corruption, the narrowest possible definition of corruption, rather than corruption of the system in a broader sense. And secondly, the Supreme Court said that corporations, as well as labor unions, have the constitutional right to spend unlimited amounts of money in elections.

In the Supreme Court's view, so long as that spending is not “coordinated” with a candidate's campaign, it cannot possibly cause quid pro quo corruption.

By doing that, the Supreme Court set in motion a retrenchment that has enabled wealthy and corporate interests to challenge more and more campaign finance reforms as violating their constitutional rights.

The v. Federal Election Commission decision is also known as a case that really solidified the reach that super PACs have. Can you talk about that case?

The Court of Appeals for the D.C. Circuit, a lower federal court that hears many challenges to federal laws, issued the SpeechNow decision just a few months after the Citizens United decision. The SpeechNow decision says that if a PAC (political action committee) promises to spend its money without coordinating with the candidate’s campaign, it is unconstitutional for Congress to limit the amount of money that can be contributed to that committee. That is what created super PACs. This decision has actually never been reviewed by the U.S. Supreme Court, but it has effectively become the law of the land in the decade since it was decided. And it will remain the law of the land until the Supreme Court or a federal court of appeals, that is not the D.C. Circuit, decides differently.

I think it's important to layout just what a super PAC is. 

As an individual, how much you can contribute to a candidate is still limited by federal law. You cannot contribute $6,000 directly to the Biden campaign or the Trump campaign, or to anybody running for Congress. But, you can contribute $6 million or $60 million or $600 million to their super PACs, as long as the super PAC promises not to “coordinate” their efforts.

To sum up, a super PAC is a giant slush fund for circumventing the few remaining limits on how much money can be contributed to candidates, campaigns, and political parties.

There are still the old fashioned PACS whose contributions to candidates are limited to $5,000 per year. But they've become less and less relevant as super PACs have come to dominate and swallow up the older form of political spending. 

How is coordination defined legally, and what does it look like in practice?

As long as a super PAC does not talk to the campaign manager or the candidate’s campaign about where exactly to buy ads, the money they are spending is considered to be “independent” spending. The constitutional idea that the Supreme Court has set forth is that if the spending is done independently of the campaigns, then it can't be limited constitutionally. 

Under Federal Election Commission regulations, you could technically have a super PAC that is run by a relative of the candidate or their former campaign manager, who knows exactly where the candidate is buying their ads. The candidate is even allowed to appear at fundraisers for the super PAC and encourage people to contribute.

Do you think that there should be tighter rules about what “coordination” is defined as? 

Some of this could be fixed by the Federal Election Commission tightening rules around coordination, but even if it were to do that, no coordination rules could ever solve the fundamental problem, which is that political operatives can toe whatever lines the regulatory agency might set forth. As long as the rule coming from the courts is that big donors have a constitutional right to contribute unlimited amounts of money to the super PAC, we have a giant loophole to work around contribution limits to the candidates. Why would you stop at giving $6,000 to a candidate when you can give, if you have it, $6 million to their super PAC — or $60 million or $600 million?

Where does the money that runs through super PACs come from for the most part? Is it mostly large corporations or wealthy individuals?

Some of it is directly from corporations. A lot of it comes from wealthy individuals. And some of it is actually harder to trace. The contributors to a super PAC must be disclosed, but in some cases, those contributors themselves are entities that raise money and they don't have to disclose their donors, such as 501(c)(4) groups, sometimes called dark money groups. And you will know which dark money group gave money to the super PACs, but you don't know who gave money to the dark money group.

On a basic level, what do people get from giving large sums of money to super PACs?

Particularly if it's a super PAC that the candidate is connected to, donors get the benefits of influence and access to that candidate. If you give a million dollars to a super PAC supporting a candidate, you're going to be able to have a phone call with that candidate to talk about your particular policy priorities — whatever tax favor you're looking for or whatever regulatory favor you need for the business that you run. 

Do you see an opportunity for getting past the narrow definition of corruption?

There's a long-term goal and a shorter-term goal. The long term goal is a constitutional amendment to overturn Citizens United and other cases that came before it. We want to go back to before Buckley v. Valeo and reset the framework for how courts consider questions of campaign finance on an entirely different footing that places the principle of one person, one vote, and the promise of political equality at center stage.

Until that happens, we're dealing with courts operating under the framework that was established in Buckley and worsened under Citizens United. We want to lay the groundwork for a future Supreme Court that may be amenable to revisit some of those decisions. And we also want to look for any spaces where the Court has not yet committed itself on a particular point, such as with Super PACs. 

How was the case that your team tried to bring to the Supreme Court, Lieu v. FEC, part of that effort to lay a new groundwork? 

The Lieu case was a challenge filed by several members of Congress, Ted Lieu, Democrat of California; the late Walter Jones, Republican of North Carolina; and Senator Jeff Merkley, Democrat of Oregon, as well as some 2016 congressional candidates, who sought to raise the question of the constitutionality of limits on contributions to super PACs. This went through the D.C. Circuit, the very federal court that issued the v. Federal Election Commission decision in the first place. The framework for that case was an action seeking to enforce the existing federal limits on contributions that had been struck down in SpeechNow and to have the Supreme Court declare that SpeechNow was incorrectly decided in the first place.

The Supreme Court, ultimately, decided not to take the Lieu case. We filed the petition in June of 2020. The untimely passing of Justice Ginsburg and the elevation of Justice Barrett in her place changed the dynamic of the Supreme Court. While we're disappointed that the Court did not take this particular opportunity to review SpeechNow, the question is still open and it can be brought again to the Court under different circumstances.

We intend to bring it to the Court again at some point in the future because the SpeechNow ruling will not stand the test of time.