Citizens United decision not as consequential as it seems

Lanny Davis Former Special Counsel to President Bill Clinton
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“It is my belief that there are ‘absolutes’ in the Bill of Rights and they were put there on purpose by men who knew what words meant and meant their prohibitions to be absolutes….[The first Amendment] provides, in simple words, that ‘Congress make no law…abridging the freedom of speech or the press. I read ‘no law abridging” to mean ‘no law abridging.’” — the late Supreme Court Justice Hugo L. Black

On first reading the Supreme Court’s Jan. 21 decision on Citizens United v. Federal Election Commission, which overruled provisions of the McCain-Feingold campaign finance reform act that criminalized union and corporate public advocacy advertisements urging the election or defeat of a federal candidate within 30-60 days of the election, I thought of my favorite quote—the one above—from my favorite Supreme Court Justice of all, Hugo Black.

Writing for the 5-4 majority in Citizens United, Justice Anthony M. Kennedy’s words were consistent with Justice Black’s famous strict construction, “absolutist” First Amendment philosophy. “Under our laws and our traditions, it seems stranger than fiction for our government to make political speech a crime,” Justice Kennedy wrote. There is “no basis for the proposition that, in the context of political speech, the government may impose restrictions on certain disfavored speakers.”

Moreover, as the writer of a column called “Purple Nation,” if ever there was a “purple,” “Blue-Red” group of supporters of the majority’s decision—liberal groups such as the ACLU and the AFL-CIO, and conservative groups such as the National Rifle Association and the U.S. Chamber of Commerce—this is it.

Yet the Supreme Court’s decision was strongly opposed by my four favorite liberal Supreme Court justices, with a passionate 90-page dissent written by the greatest one of all, Justice John Paul Stevens. The decision was also criticized by most liberal Democrats, of which I am one, and by President Obama. And most conservatives and Republicans with whom I disagree cheered the decision, privately gloating that the decision will result in unleashing huge amounts of corporate contributions in their direction.

So I am conflicted. I believe in the First Amendment as Justice Black did—no ifs, ands or buts. But I am fearful of the power of big corporate money flooding into the federal election process in the form of advocacy ads, which undoubtedly will not be matched by union-paid ads, which will now also be legal.

However, my hunch that the Citizens United decision is probably going to have a lot less dire effects than liberal Democrats have publicly predicted, and a lot less favorable effects that conservative Republicans are privately saying.

First, corporations who pay for partisan public ads must take into account the possible risk of consumer boycotts and shareholder backlash. This smacks of McCarthyism—and has happened in the last year on both the right and left or positions taken on issues by some corporate executives. Similarly, there are union members who possibly might rebel if their union officers are deciding to pay for advocacy ads that take positions in ads with which some members disagree.

This self-restraint by corporations and unions will occur especially if the regulatory or legislative response is to impose greater transparency for all donations—as Justice Kennedy himself suggested in his decision, perhaps instantaneously on the Internet.

Second, corporations or unions who contribute to certain non-profit corporations or trade associations in the belief this will provide them cover may well be disappointed. The current rules that arguably allow anonymity donors to certain non-profits and trade association could be changed by congressional legislation, replaced by strict transparency for any money targeted for political advocacy ads. To those who argue violation of privacy rights, the constitutional answer should be:  you have waived your privacy rights when you choose to donate to help elect or defeat a federal candidate.

If the public is really concerned about reducing the influence of money in politics, there is one way to reduce its impact—some form of public financing of all federal elections. That can be accomplished by the simple idea of requiring a $5 or $10 check-off box to contribute to a public trust fund that would fund federal elections rather than individual contributions. However, this is hardly a clear panacea. It won’t end the influence of independent public advocacy now protected under the Citizens United decision. And experience to date is that participation in the current optional tax credit dollar-check-box for presidential campaigns, which costs taxpayers nothing, has been on the decline.

But with bipartisan support and better marketing, perhaps a $5 or $10 option could be sold. If people are that concerned about the excessive impact of money in American politics—and who couldn’t be – isn’t it worth five or ten bucks per person at least to reduce the impact of much money in politics?

I certainly would check the box. Wouldn’t you?

Mr. Davis, a Washington, D.C., attorney, served as President Clinton’s Special Counsel and a member of President Bush’s Privacy and Civil Liberties Oversight Board from 2006-07.  He is the author of “Scandal:  How ‘Gotcha’ Politics Is Destroying America.”

This column also appears in The Hill newspaper.