Citizens United and Transparency: A Look Ahead


The Supreme Court has issued its long-awaited decision in the election law case Citizens United [PDF], to which Ellen has posted her thoughtful response and initial reactions. I’m going to look at the decision’s implications for legal challenges to transparency over the long haul. These are first impressions of a 180+ page opinion and dissents, so thinking on this will likely evolve over the upcoming days and weeks.

To briefly recap, the Supreme Court examined whether the long-standing laws prohibiting corporations and unions from spending money on issue advertisements or express advocacy ads (that support a particular presidential or congressional candidate) violate the First Amendment; and also whether laws that require reporting of these expenditures are constitutional.

Justice Kennedy, writing for the narrow 5-4 majority, held that corporations and unions can spend unlimited amounts of money on issue advertisements or express advocacy right up until election day. Justice Stevens, writing for the dissent (joined by 3 other justices), criticized that decision on many grounds, including practical ones: “The unparalleled resources, professional lobbyists, and single minded focus they bring to this effort, I believed, make quid pro quo corruption and its appearance inherently more likely when they (or their conduits or trade groups) spend unrestricted sums on elections.” (Many argue, like election-law expert Rick Hasen, that the Court shouldn’t have reached these issues in the first place.)

What is clear is that corporations and unions will be able to dump tons more money into an already groaning political system. (We’ll shortly see who has more resources to draw upon.) The decision did not address whether unions and corporations may contribute directly to candidates (up until today they could not) , and left a number of other open questions.

Looking to transparency — disclosure of who funded the ads — only Justice Thomas (who dissents in part) would strike down measures requiring disclosure of donors. But the majority and minority have very different views on the usefulness of transparency in addressing money-related problems. They also leave open a big loophole to knock down transparency laws in the future.

Justice Kennedy could be a publicist for Sunlight. He writes “With the advent of the Internet, prompt disclosure of expenditures can provide … citizens with the information needed to hold … elected officials accountability for their positions and supporters.” It could; the law needs to be updated to require the prompt disclosure online in useful formats. We’ll be working on that.

Justice Kennedy dismisses the legal arguments against disclosure requirements one-by-one.

  • Disclosure is less restrictive than comprehensive regulations of speech (and thus doesn’t need to be struck down here)
  • Disclosure requirements don’t need to be limited to (essentially) express advocacy. (For example, they can apply to issue ads)
  • Disclosure requirements don’t need to be uniform — broadcast media, the Internet, and print can all be treated differently. (But you can’t treat corporations and unions differently from people.)
  • An “informational interest” — the public has an interest in knowing who is speaking about a candidate shortly before an election — is sufficient to upheld current disclosure requirements

So what’s the catch? There are likely several, but here’s the main one. Even though the Court won’t consider challenges to these disclosure requirements as they are written, it will consider challenges to them (known as “as-applied challenges”) if — are you ready — a group could show a reasonable probability that disclosure of its contributors names will subject the contributors to threats, harassment, or reprisals from either Government officials or private parties. How much harassment? What kind of reprisals? What is “reasonable probability”? No one knows.

This is catnip for lawsuits that would seek to hollow out disclosure requirements to their most innocuous — and least effective — forms. Justice Thomas, in his dissent, argues that harassment exists now, that it impermissibly chills free speech, and thus these disclosure rules should have been struck down in this decision.

The as-applied challenge escape clause isn’t stupid. It stems from attempts by the KKK to get membership lists of NAACP contributors during the civil rights era so that the Klan could attack the organization’s supporters. With firebombs. But that’s a far cry from disclosing corporate donors. It doesn’t weigh the importance of disclosing contributor names. Also, unlike in the civil rights era, criminal behavior such as that engaged in by the Klan will be prosecuted by the state, and likely can be deterred. This squishy legal test may allow malefactors to uproot the best remaining bulwark against a see-no-evil money-drenched political system. We may save the individual from hypothetical harm at the cost of the state.

Justice Stevens notes in his dissent that “The difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf.” Down we slide the slippery slope. Where may we end up? “Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.”

The Justice does nod towards disclosure. “Modern technology may help make it easier to track corporate activity, including electoral advocacy, but it is utopian to believe that it solves the problem.”

So, that’s where we’re left. Eight members of the Court agree that disclosure is useful to, in the words of Justice Kennedy, see whether elected officials are ‘in the pocket’ of so-called moneyed interests. Election-related expenditure limits are eliminated for unions and corporations, and perhaps people one day will be treated on par with corporations in terms of their expenditures. Finally, a case brought in federal district court today challenging these rules may have a Supreme Court with differently inclined members to hear it in a few years.