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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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The courts themselves have been of several minds about what the First Amendment requires, and remain closely divided.  The Supreme Court’s current doctrine is that spending money for an ad that elects a candidate is not corrupting, but giving the candidate the money to run the same ad is.  The Court has held that Congress could prohibit corporate and labor expenditures in elections—until it held that it couldn’t.  The Supreme Court in Citizens United said that the government had no business limiting anyone’s speech, and that we are better off hearing ALL voices, no matter their source.  Then it summarily affirmed the decision of a three-judge district court in Bluman v. FEC that held that the government could prohibit foreigners legally residing and working in the U.S. from speaking in U.S. elections.  The three-judge court explained that the difference was that foreigners were traditionally outside of participation in the U.S. political system, even if they lived here.  Of course, many people thought that was true of corporations too, until Citizens United.

My point is not that the Court was right in one case or wrong in another, but rather, that these are close and complicated issues of Constitutional interpretation and that the Court slashing its way through campaign finance statutes with a machete seriously threatens  the stability of our democracy.

I am occasionally asked questions by reporters and foreign visitors about our campaign finance system and I have taken to responding that there is now no such a “system.”  The laws written by Congress have been so rearranged by various Court decisions that they resemble the pieces of a jig-saw puzzle, laid out randomly on a table, with important pieces missing.

On occasion, it suits the partisan interests of one side or another to claim that the pieces cannot be put back together even when they can—that a constitutional barrier exists when it does not—because that argument sounds better than acknowledging the partisan reality.

One example of this is the current debate about disclosure.  There are certainly good reasons for some of the organizations running political ads this year to think that they will raise more money if they do not have to disclose their donors.  American Crossroads started as an organization that disclosed its contributors—but it did not have as many as expected. Then, they created a 501( c)(4) that did not disclose its donor’s names—and it suddenly had a whole lot more.

Corporations may have good reason to seek to keep political expenditures secret—secret from their shareholders and customers and employees, at least.  The example of Target, which faced consumer boycotts, shareholder resolutions, and angry employees when it contributed to a committee supporting a controversial candidate for Governor in its home state of Minnesota in 2010, is often cited as what other corporations hope to avoid.

However, in addition to these practical arguments, opponents of disclosure attempt to wrap their position in the Constitution.  They claim that requiring the disclosure of funders of political ads would “undermine” Citizens United.  They also claim that the secrecy of corporate funding is protected by the 1950s civil rights case NAACP vs. Alabama.

The Citizens United claim is particularly far-fetched.  One under-reported aspect of the Citizens United decision is that the Court upheld the broad disclosure requirements of McCain-Feingold 8-1: every member of the Court except Justice Thomas agreed that “the public has an interest in knowing who is speaking about a candidate before an election.”

The eight Justice majority for this portion of Justice Kennedy’s Opinion went on to praise disclosure of the sources of political speech in robust terms: