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How I Became Stephen Colbert's Lawyer -- And Joined the Fight to Rescue Our Democracy from Citizens United

The Supreme Court's campaign finance legacy has undermined the "whole purpose of the Constitution," to have a "functioning, representative" government.

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I do not pretend this is a simple constitutional issue, precisely because this is where two important Constitutional values meet, sometimes head on: the First Amendment, the quintessential individual right to free speech,  which we know about, and the important collective right to  a functioning, representational government, which we sometimes forget is the whole purpose of the Constitution.  But the Supreme Court has until now recognized repeatedly that the legitimacy of government is threatened at its core when it is corrupt, or even appears to most citizens to have a serious conflict of interest.

Since the Supreme Court’s decision in Buckley, which upheld most of the Watergate campaign finance reforms (with the important exception of “expenditures totally independent of a candidate or party”), the Supreme Court’s jurisprudence in campaign finance has changed.  The Court has moved from largely upholding regulation of campaign fundraising and corporate spending, to striking it down.  The 6-3 Austin decision acknowledging the corrupting potential of corporate money in elections was succeeded by the Supreme Court’s 5-4 decision in McConnell v. FEC upholding the McCain-Feingold restrictions and then shortly after by the Court’s 5-4 decision the other way in Citizens United striking down McCain-Feingold’s regulation of corporate and labor money in elections.

One noteworthy aspect of Citizens United is that it was decided by a Court which, for the first time in U.S. history, has not a single Member who has held elective office.  Justice O’Connor, the key vote to uphold McCain-Feingold, had run for office, raised campaign funds, served in the Arizona legislature as majority leader, and understood how dangerous and complicated the intersection of campaign money and legislation can be.  She was willing to defer to Congress, after it spent years discussing the potential and appearance of corruption in the fundraising done by members and party committees.  She deferred to the considered judgment of Congress in dealing with what it identified as a serious problem, on the theory that they knew more than the Supreme Court about corruption in the legislative process.

Other Justices show no such deference—in fact, they appear to think any regulation of campaign finance by Congress is suspect, that it must be nothing more than incumbent protections.  Having watched firsthand as insurgents and rank and file members of Congress passed McCain-Feingold with considerable public support and over the bitter opposition of insiders of both parties,—I did not regard the legislation that way.

But more importantly, I think the clear propensity of this Court to brush aside Congress’ judgment that there is a danger of corruption of the legislative process because of election spending creates a serious institutional barrier to Congress’ ability to safeguard the legislative process.

In the last two years, the Supreme Court has allowed unlimited corporate and labor spending in all elections in the U.S., overturning 60 year old federal laws and some older laws in 26 states.  It has declared unconstitutional as a restriction on speech the Arizona public financing system, because it provided additional public funds for more speech to candidates participating in the public funding system, triggered if their opponents spent that amount. The DC Circuit has declared unconstitutional the longstanding $5,000 contribution limit to independent-expenditure only political action committees, which decision has resulted in the creation of what we know as SuperPACs—like Stephen Colbert’s Americans for a Better Tomorrow, Tomorrow.

All of this has been done in the name of the First Amendment, which as Americans, and as lawyers, we revere.  But one can be a First Amendment absolutist without being absolutely sure what it requires and what is prohibits.  Well-meaning and wise people can differ on these questions, which I believe argues for some deference to Congress when it seeks to limit corrupting activity, as they are the ones who experience the campaign finance system on a daily basis.