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«OF BENEDICK AND BEATRICE: CITIZENS UNITED AND THE REIGN OF THE LAGGARD COURT Justin J. Wert*, Ronald Keith Gaddie** & Charles S. Bullock, III*** ...»

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OF BENEDICK AND BEATRICE: CITIZENS

UNITED AND THE REIGN OF THE

LAGGARD COURT

Justin J. Wert*, Ronald Keith Gaddie** & Charles S. Bullock, III***

INTRODUCTION................................................. 719

I. CITIZENS UNITED IN THE CONTEXT OF CAMPAIGN

FINANCE............................................... 721

II. THE REAL SIGNIFICANCE OF CITIZENS UNITED: A

LAGGARD COURT, NOT A COUNTER-MAJORITARIAN

COURT................................................. 727 CONCLUSION................................................... 736

INTRODUCTION

The Citizens United decision struck down long-established prohibitions on the use of corporate funds to provide direct financing for independent political advocacy campaigns.1 The decision stimulated a predictably dire response that wealthy corporations would now determine elections and, by extension, public policy. In this Article, we explain the behavior of the Citizens United Court as part of a larger pattern of behavior by a “laggard” or counter-majoritarian Court, where a 5–4 conservative majority rendered a decision that is part of a larger exercise in posturing and signaling to the other institutions of government. The actual consequences of Citizens United, much like previous conservative signaling decisions by this Court over the past decade, have few substantive policy consequences. These decisions instead articulate a set of principles held by the minimal winning coalition on the Court, and are mainly an effort of the counter-majoritarian Court to gather power to itself in a political system that moved away from the Court’s core principles.

Since Bush v. Gore,2 no decision of the Supreme Court has elicited as much national consternation as Citizens United v. FEC. In two separate commentaries in the New York Review of Books, for example, eminent legal theorist Ronald Dworkin entitled his articles, The Decision * Assistant Professor of Political Science, The University of Oklahoma.

** Professor of Political Science, The University of Oklahoma.

*** Richard B. Russell Professor, The University of Georgia.

1 See Citizens United v. FEC, 130 S. Ct. 876 (2010).

2 See 531 U.S. 98 (2000).

720 CORNELL JOURNAL LAW PUBLIC POLICY [Vol. 20:719 OF AND that Threatens Democracy,3 and The “Devastating” Decision.4 Aside from the legal cognoscenti, the most notable reaction to the opinion came from President Barack Obama during his State of the Union address one

week after the decision:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.5 Seated with his Court brethren amidst those sympathetic to the President’s criticisms of Citizens United who stood to applaud, Justice Samuel Alito appeared to mouth the retort, “Not true!”6 The decision’s critical reception, then, along with the very public exchange between the President and the Associate Justice seemed to portend a political battle with the Judiciary on one side and the Executive Branch and a majority of the Congress on the other. The potential Judicial–Executive face off reminded some of the New Deal clash in the years leading up to 1937.7 We seek to make sense of Citizens United from an empirical political science perspective that discounts both the positive and negative rhetoric that has surrounded the decision. We do this by integrating both an empirical and historical/contextual perspective. In the most immediate sense, Citizens United does not portend the anti-democratic effects that critics predict nor does it stand as a bastion of free speech doctrine like its proponents suggest. Instead, Citizens United is the product of a Republican-entrenched Court that, at this moment, is lagging behind the policy preferences of the elected political branches of American governRonald Dworkin, The Decision That Threatens Democracy, N.Y. REV. OF BOOKS, May 13, 2010, at 39, available at http://www.nybooks.com/articles/archives/2010/may/13/decision-threatens-democracy.

4 Ronald Dworkin, The “Devastating” Decision, N.Y. REV. OF BOOKS, Jan. 28, 2010, at 63, available at http://www.nybooks.com/articles/archives/2010/feb/25/the-devastating-decision/.

5 See Robert Barnes, Reaction Split on Obama’s Remark, Alito’s Response at State of the Union, WASH. POST, Jan. 29, 2010, at A1, available at http://www.washingtonpost.com/ wp-dyn/content/article/2010/01/28/AR2010012802893.html.

6 Id.

7 For the classic account of the battle, see WILLIAM EDWARD LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL: 1932–1940, 231–39 (1st ed. 1963).





2011] OF BENEDICK BEATRICE 721 AND ment.8 The decision is thus more important for what it says about the Roberts Court more generally than what it says about campaign finance reform and democracy at present.

Part I presents an empirical argument that the immediate substantive effects of Citizens United will be modest, and does not represent a substantial departure from the status quo of American campaign finance;

whatever threat exists to democracy under the previous campaign finance regime is not meaningfully enhanced. Part II seeks to explain more broadly the significant and far-reaching effects of Citizens United, which have less to do with campaign finance reform than with the Court’s continued efforts to stake out a preeminent position in national politics, despite the incongruence of the existing Court majority with the broader popular and electoral coalition that predominates in other national institutions. We demonstrate that this pattern of behavior is evident in two areas since the ascendency of the conservative majority on the Court— campaign finance and redistricting.

I. CITIZENS UNITED CONTEXT CAMPAIGN FINANCE

IN THE OF Interpreting the substantive impact of the Citizens United case requires consideration of the broader context of campaign finance in elections. There are fundamental truths about money in politics: the candidate who spends the most money usually wins;9 money often flows to candidates who are expected to win, or who exhibit prior success in elections, either in winning down-ticket offices or by holding congressional office;10 and contributions from economic interests—corporate, trade association, and labor union political action committees (PACs)— are usually structured by policy priorities and the ability of incumbents to deliver policy for a reasonable “purchase price.”11 8 For a discussion of the use of federal court appointments to entrench the goals of political parties, see generally Howard Gillman, How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891, 96 AM. POL. SCI.

REV. 511, 511–24 (2002) [hereinafter Gillman, How Political Parties].

9 See Stanton A. Glantz, Alan I. Abramowitz & Mark P. Burkhart, Election Outcomes:

Whose Money Matters?, 38 J. POL. 1033, 1033–48; Gary C. Jacobson, The Effects of Campaign Spending in Congressional Elections, 72 AM. POL. SCI. REV. 469, 469–83 (1978); Gary C. Jacobson, Practical Consequences of Campaign Finance Reform: An Incumbency Protection Act?, 24 PUB. POL’Y 1, 1–24; Samuel C. Patterson & Gary W. Copeland, Reform of Congressional Campaign Spending, 5 POL’Y STUD. J. 424, 424–31; see generally GARY C.

JACOBSON, THE POLITICS OF CONGRESSIONAL ELECTIONS (1st ed. 1983) [hereinafter JACOBSON,

CONGRESSIONAL ELECTIONS].

10 David Canon, ACTORS, ATHLETES, AND ASTRONAUTS: POLITICAL AMATEURS IN THE UNITED STATES CONGRESS 75 (1990); RONALD KEITH GADDIE & CHARLES S. BULLOCK, III, ELECTIONS TO OPEN SEATS IN THE U.S. HOUSE: WHERE THE ACTION IS 13 (2000); JACOBSON, CONGRESSIONAL ELECTIONS, supra note 9, at 38–39.

11 Kevin B. Grier, Michael C. Munger & Brian E. Roberts, The Determinants of Industry Political Activity, 1978–1986, 88 AM. POL. SCI. REV. 911, 911–26 (1994) [hereinafter Grier et 722 CORNELL JOURNAL LAW PUBLIC POLICY [Vol. 20:719 OF AND There are also misconceptions about money in politics that merit attention. First, PACs do not dominate campaign financing. Incumbents, challengers, and open seat candidates generally receive most of their money from individual donors. Second, the ability to spend more and more money does not necessarily lead to unlimited return on investment—there are diminishing returns to each additional dollar spent by candidates.12 In the context of Citizens United, corporations are still banned under the Tillman Act directly contributing to candidates.13 The decision opened the door for corporations and labor unions to do something unprecedented in American politics for a century—to use dollars from corporate or union coffers for campaign advocacy.

Critics of the Citizens United decision fear that the ability of corporations to use their profits to influence elections directly will result in the outright purchase of election results by corporate interests. There are several reasons that these fears are overblown, or at the very least misstated. Why?

First, corporate influence in the campaign process is already substantial. Labor unions and corporations give hundreds of millions of dollars to candidates, mainly incumbents, and those dollars are targeted based on the economic needs of the sponsors.14 These are not direct corporate dollars, but come from prominent employees, friends of corporations, and shareholders—in other words, individuals who benefit from the profitability of the corporation and are effectively plowing their economic gains back into the political system in order to continue those gains in the future through a favorable regulatory environment.

Second, the corporate and union moneys that are opened up for use by the Citizens United decision do not exist in a vacuum, sitting in a al., Determinants]; Kevin B. Grier & Michael C. Munger, The Impact of Legislator Attributes on Interest-Group Campaign Contributions, 7 J. LAB. RES. 349, 349–61 (1986); Kevin B.

Grier, Michael C. Munger & Brian E. Roberts, The Industrial-Organization of Corporate Political-Participation, 57 S. ECON. J. 727, 727–38 (1991) [hereinafter Grier et al., IndustrialOrganization]; Amy J. Hillman, Gerald D. Keim & Douglas Schuler, Corporate Political Activity: A Review and Research Agenda, 30 J. MGMT. 837, 837–57 (2004); Robert A. Smith, Interest Group Influence in the U.S. Congress, 20 LEGIS. STUD. Q. 89–139 (1995); David Soherr-Hadwiger, Military Construction Policy: A Test of Competing Explanations of Universalism in Congress, 23 LEGIS. STUD. Q. 57, 57–78 (1998); Thomas Stratmann, How Reelection Constituencies Matter: Evidence from Political Action Committees’ Contributions and Congressional Voting, 39 J. L. & ECON. 603, 603–35 (1996).

12 See Kevin B. Grier, Campaign Spending and Senate Elections, 1978–84, 63 PUB.

CHOICE 201, 201–19 (1989).

13 See Pub. L. No. 59-36, 34 Stat. 864 (codified as amended at 2 U.S.C. § 441b (2006));

Anthony Corrado, Money and Politics: A History of Federal Campaign Finance Law, in THE NEW CAMPAIGN FINANCE SOURCEBOOK 27, 27–60 (Anthony Corrado et al. eds., 2005).

14 See Grier et al., Determinants, supra note 11; Grier et al., Industrial-Organization, supra note 11.

2011] OF BENEDICK BEATRICE 723 AND massive Scrooge McDuck money vault. These moneys, whether from profits or member dues, also have other obligations. They are to be invested on behalf of shareholders or members, or used to pay dividends, or put to purposes that benefit those who are economically dependent on the corporation or union. Political activities must be balanced against a variety of other needs and priorities for institutional money.

Third, the moneys now eligible to enter the campaign finance system do not go directly to candidates; these moneys go into issue advocacy or candidate advocacy not formally under the control of a candidate.

This is a legal reality, though it is something of a convenient fiction, to say that candidate beneficiaries have no say in the use of coordinated campaign or independent expenditures on their behalf (or to their opponent’s detriment). Candidates do have a notion of how these dollars are used, where they come from, and the expectations of the contributors.

Fourth, the impact of independent expenditures in campaigns is real, but independent expenditures are not necessarily deterministic of election outcomes. When the Buckley decision loosened the fetters on independent expenditures, there was an initial impact on the campaign environment.15 The targeting of Sen. Dick Clark (D-Iowa) by the National Conservative Political Action Committee is often cited as the first example of an independent advocacy campaign defeating an incumbent lawmaker.16 Republicans would follow this strategy to gain a Senate majority in 1980, but the use of independent expenditures to defeat incumbents soon waned. Subsequent scholarship shows that independent expenditures mattered no more than any other form of spending in U.S.

Senate elections.17 The rate of independent expenditure rose slowly and systematically through the 1980s and early 1990s. Over 99% of the $135 million in independent expenditures made by PACs in the 2007–2008 election cycle came from labor union PACs, non-connected PACs, and trade association PACs. Over 43% of all independent expenditures came from labor PACs, with another 33.2% from trade association PACs.18 Less than one-tenth of one percent of independent expenditures came from corporate PACs, and cooperative PACs made no independent expenditures, 15 See Buckley v. Valeo, 424 U.S. 1, 29 (1976) (per curiam); Richard N. Engstrom & Christopher Kenny, The Effects of Independent Expenditures in Senate Elections, 55 POL. RES.



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