March 30, 2010
The Reach of Citizens United
The en banc D.C. Circuit ruled on Friday that the logic of Citizens United v. FEC, the Supreme Court's January 21 ruling striking down limits on independent campaign expenditures, also applied to independent campaign contributions.
The case, SpeechNow.org v. FEC, involved a First Amendment challenge by an independent 527 political organization to the limits in 2 U.S.C. Sec. 441a, the Federal Election Campaign Act section that limits contributions to organizations engaged in advocacy of the election or defeat of a clearly identified candidate not in cooperation with the candidate, the candidate's political committee, the candidate's party, or the candidate's agent.
The D.C. Circuit ruled the limits unconstitutional based on the reasoning in Citizens United.
The D.C. Circuit ruling may be read as an extension of Citizens United--extending that case from expenditures to contributions--but nothing in the ruling was a particular surprise in the wake of Citizens United. Instead, the ruling simply applied the logic of Citizens United to a related context and in the process gave a glimpse of the potentially vast reach of that case.
The D.C. Circuit started by recognizing that there is only one government interest that can support an encroachment upon First Amendment principles through regulation of contributions: preventing corruption or the appearance of corruption. But the Supreme Court in Citizens United narrowed the definition of this interest to a financial quid pro quo--money for political favors. (The Citizens United Court held that this definition was faithful to the Court's 1976 ruling in Buckley v. Valeo, and that subsequent cases that expanded this definition, including Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC that relied upon Austin, deviated from Buckley and were therefore overruled.) The Court also ruled that independent expenditures--those expenditures by corporations and labor unions that are not coordinated with a candidate or the candidate's committee or party--do not raise corruption concerns (because, after all, they are independent).
The D.C. Circuit took these holdings from Citizens United on expenditures and applied them to contributions. The D.C. Circuit ruled that it didn't matter that limits on contributions have been subject to a lower level of scrutiny than limits on expenditures, because under Citizens United, there are no government interests in regulating independent contributions: the independence of the contributions means that there is no corruption concern. The plaintiffs' First Amendment interests in contributions--even if less substantial than similar interests in expenditures--were sufficient to outweigh the government's non-interest in corruption. As the D.C. Circuit wrote, "something outweighs nothing every time."
Thus SpeechNow.org is an expansion of Citizens United, but not a particularly surprising one. The core of the problem for those opposed to unregulated independent contributions and expenditures lies in the Court's ruling in Citizens United--that independence nullifies the corruption concerns--not in the D.C. Circuit's application of that ruling. SpeechNow.org simply gives us a glimpse of just how far Citizens United might reach.
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