Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School. Hasen is a nationally-recognized expert in election law and campaign finance regulation, is co-author of a leading casebook on election law and co-editor of the quarterly peer-reviewed publication, Election Law Journal. His opeds and commentaries have appeared in many publications, including The New York Times, Washington Post, Los Angeles Times, and Slate. He received his BA, with highest departmental honors, from the University of California Berkeley, his MA with distinction, JD, member Order of the Coif, and PhD from the University of California Los Angeles.
The Politic: Firstly, can you briefly summarize the ruling in Citizens United v. FEC?
RLH: In Citizens United v. FEC, the Supreme Court determined that corporations and labor unions have a constitutional right to spend money independently of candidate campaigns in order to influence the outcome of those campaigns. In doing so, the Supreme Court overruled two precedents that had held that states and the federal government had the power to require corporations and unions to use separate political committees and not their general treasury funds to run such independent advertising.
The Politic: How will the ruling affect party-led organizations such as the Republican and Democratic National Committees?
RLH: Well this is one of the most interesting questions from the outcome of Citizens United. What Citizens United did in part was to strike down a provision of the McCain-Feingold law, which limited what corporations and unions could do independently. It did not touch the other parts of the McCain-Feingold law that were upheld by the Supreme Court in the McConnell v. FEC case, which said that it was permissible for Congress to limit party soft money (money raised by the parties from large donors such as corporations, unions and wealthy individuals that was used in advertising to help political parties before the McCain-Feingold law passed).
The concern following Citizens United, expressed by some people with sympathy for the idea of strong political parties, is that the opinion releases corporations and labor unions from restrictions on their funds, but keeps restrictions on political parties, thereby putting political parties at a disadvantage. If that’s the case, there’s a concern that these groups could spend money and drown out the message of the political parties by flooding the airwaves with negative ads. There’s also concern that these outside groups are less accountable than political parties, and therefore they might be more reckless in the types of advertising they’re willing to run.
The Politic: I imagine it will have a major impact on smaller local elections.
RLH: I think it depends on the election. We already had 24 states that did not impose limitations on corporations spending independently. There’s a big debate going on in the field over whether or not those states had bigger problem than states with limitations. I think the level of impact depends on the race. One place where I’m especially concern about the Citizens United ruling is in the field of judicial election because corporations especially have a very strong interest in state tort law rules and workers’ compensation rules, the kinds of things that state supreme courts tend to regulate pretty closely. I think we could well see a flood of corporate and union money going into state supreme court elections in a way that could influence their outcome.
The Politic: Are Republicans the natural beneficiaries?
RLH: That’s also being debated. At this point, we’re just guessing. We need to see a few election cycles to see how things work out. The conventional thinking is that Republicans will benefit because corporations will tend to support Republicans because the Republican Party is more in favor of free enterprise. On the other hand, corporations tend to support incumbents from either party, and right now Democrats control both houses of Congress, so we’ll have to see how that works out. One place where we could see a significant amount of corporate spending is in the presidential election. President Obama was able to raise about $745 million from individual donors in the 2008 presidential election, and it will be hard for a Republican to match that. Obama’s fundraising was successful in an unprecedented way. If corporations are strongly opposed to Obama’s re-election, they could well independently support the Republican presidential nominee in 2012.
The Politic: Supporters of the decision have argued that companies are results-oriented so they will back people that they believe can win, not just those that will support the most favorable tax policies for them or pass specific legislation that the company supports.
RLH: I think that you can imagine different corporate officers and managers reaching different decisions on that type of question and we’ll have to wait and see what happens. I certainly think that there could be both incentives to support incumbents and also incentives to make change where change is possible. For example, the Caperton case decided by the Supreme Court last year featured a businessman with litigation pending for the West Virginia Supreme Court who contributed $3 million toward independent spending for a candidate for the West Virginia Supreme Court. He got that person elected and that person ended up being the deciding vote in his favor in the pending litigation. It really depends on the individual circumstances as to what’s rationally in the interest of the corporation in the corporate manager’s eyes.
The Politic: Linda Greenhouse told The Politic last week that the current justices had “their first taste of wine” and that this could potentially be the start of the Roberts Court overturning a range of precedents on issues such as abortion or civil rights. What are your thoughts here?
RLH: My specialty is election law, so I feel a little out of my element to comment on these other areas. I can say that back in 2006 when Justice Alito replaced Justice O’Connor, I predicted that we’d see a whole range of changes in the way that the Court deals with election law, which is becoming evident. The Court ducked the question of the constitutionality of a key provision of the Voting Rights Act last year, but that issue could come back to the Court and there could be a majority to strike it down. There are many other questions involving campaign finance law and other areas where I am not at all confident that the Roberts Court is not going to continue past precedents.
The Politic: Some academics and advocacy groups argue that throughout the history of campaign finance reform, incumbent politicians have always been inclined to silence those that don’t share their views. For example, it is a lot easier to pass legislation against health insurance companies, unions, or non-profit advocacy organizations, if they aren’t able to speak up politically in their own defense. Is this a valid argument in support of this decision?
RLH: My view of the general question of whether or not corporate and union money, particularly corporate money, should be limited in candidate elections is an equality argument. In a capitalist democracy like ours, we have economic inequality. That’s an inevitable byproduct of a free enterprise system. That’s just how it goes, but there’s a problem when economic inequality translates into political equality. Those who have greater access to wealth have a greater ability not only to influence who is elected, but what choices elected officials make when they vote on legislation. I think the Citizens United case is problematic because it doesn’t recognize that. I also think it shows a willful blindness to the idea that independent spending can corrupt the political process. Returning to the West Virginia example, it is either politically naïve or disingenuous to suggest that someone like a candidate who is the beneficiary of a $3 million independent spending campaign to favor him is not going to feel indebted to the spender.
The Politic: Others have argued that the ruling will not have as great of an effect as people are worried about because many corporations will be bound by transparency agreements regarding campaign donations, and voters will generally recognize that better funded candidates are not necessarily better candidates. As a result of the ruling, how substantial do you expect the transformation of the American political landscape to be?
RLH: I think we’re going to have to wait and see what happens. It’s not just about influencing who gets elected, but also about influencing the policies that get made after the election. To the extent that large corporate spending is going to buy access to elected officials, which can be used to affect legislative outcomes, creates serious concerns for our democracy.