2010

Top 10 Election Issues

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Election Law @ Moritz has identified what will likely be the biggest legal issues of this election cycle. It is not surprising that campaign finance and redistricting are the first two items on this “top 10” list.

Issue #1 Corporate and Union Political Spending.

This year’s blockbuster decision in Citizens United v. Federal Election Commission gave corporations a First Amendment right to spend money from their treasuries to support and oppose political candidates.  In this election cycle, we’ve already seen controversies surrounding Congressional efforts to require greater disclosure, and campaign spending by Target Corporation.  What impact will Citizens United have on political campaigns?  Will we see a flood of new spending from corporations and unions, and will that spending make a discernible difference to voter behavior (including turnout levels)?  Are greater disclosure rules needed at the federal or state levels?

Issue #2 The Next Round of Redistricting.

Every ten years, after the new census data come out, every state is required to redraw its congressional and legislative districts.   In most states, this year’s elections will determine who controls that process throughout the next decade – and the power to draw the lines makes a big difference in determining who gets elected to office.  In whose hands will control over redistricting lie after this year’s elections?  Should this power be taken away from elected officials and transferred to bodies more insulated from partisan politics, as California has just done, like a handful of states before it?

Issue #3 Absentee and Early Voting.

For decades, an increasing number of voters have chosen not to vote on Election Day, but instead to cast their ballots days or even weeks beforehand – through either mail-in absentee ballots or in-person early voting.   The Minnesota U.S. Senate recount in 2008 revealed that absentee ballot problems can throw a close election into doubt.   And this year, some Florida absentee voters had their ballots mistakenly “returned to sender” because of a problem with the return envelopes.  Will more elections be decided by absentee ballots in 2010?  How many votes won’t be counted because of mistakes made by voters or election officials? Is in-person early voting a better way to go?

Issue #4 Voting Rights Act Enforcement.

Congress enacted the Voting Rights Act (“VRA”) 45 years ago, and most recently renewed and extended key provisions in 2006.   Under Section 5 of the Act, the Department of Justice has the authority to prevent new electoral procedures from going into effect if the Attorney General determines that they will have an adverse effect on racial minorities.  In 2009, the Supreme Court avoided a decision on the constitutionality of this key section of the VRA, but other cases are percolating through the system. How aggressively will the Obama Administration exercise its power to enforce the VRA?  Will the Supreme Court strike down Section 5 if the Administration goes too far?

Issue #5 State Registration Lists.

The Help America Vote Act (“HAVA”) required every state to have a statewide registration database, replacing the local lists that used to be the norm.  Meeting this requirement has proven an enormous challenge.   Among the most controversial issues has been the “matching” of voter registration information against state motor vehicle records.  Should states be more aggressive in matching and purging voters, as a way of preventing illegal voting?  Or should states be more cautious, so as to ensure that eligible voters aren’t wrongly kept off the lists? Will litigation over registration practices be prevalent, and will such lawsuits be instrumental in determining winners and losers?

Issue #6 Provisional Ballots.

Could the issue of 2004 turn out to be the issue of 2010?   HAVA required that states offer provisional ballots to those who say they registered but whose names don’t appear on voting rolls.   Provisional ballots are also used for voters who don’t have proper ID or, in some states, for those who have moved.   A number of states, including Ohio, still generate large numbers of provisional ballots.  In a close election, provisional ballots can make the difference between victory and defeat.  Litigation may even ensue over whether to count them, as nearly occurred in the 2004 presidential election.   Do some states rely too heavily on provisional ballots?  Will they become an issue, and perhaps the subject of litigation, if there’s a close election?

Issue #7 Military and Overseas Voting.

In 2009, Congress enacted the Military and Overseas Voter Empowerment Act (“MOVE”) as an amendment to the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”).  A major feature of MOVE is its requirement that all states send absentee ballots to UOCAVA voters at least 45 days before the election, unless a state has received a waiver of this requirement from the federal government.  In response to MOVE, a number of states have moved up their primary election date in hopes that they will be able to meet the 45 day deadline.  Will states generally meet this new deadline this year?  Meanwhile, nine states have sought a waiver, but not all requested waivers have been granted.  How will states that did not receive a waiver comply with MOVE?  What other issues will arise concerning the difficulties that military and overseas voters have in obtaining and casting a ballot?

Issue #8 Language Assistance and Bilingual Ballots.

The Voting Rights Act requires that certain language minorities – including Hispanic, Asian, and Native American populations – be provided with oral and written assistance if they constitute a significant portion of a voting jurisdiction.  And the Department of Justice recently reached an agreement with Cuyahoga County, Ohio, requiring the accommodation of U.S. citizens from Puerto Rico.  To what extent should states and local governments accommodate voters who aren’t proficient in English?   Will the Justice Department step in to enforce the VRA’s language assistance provisions in other parts of the country?

Issue #9 Registration at Public Assistance Offices.

The National Voter Registration Act of 1993 (“NVRA,” also known as “Motor Voter”) requires that states allow citizens to register at public assistance offices, as well as motor vehicle agencies.  With the economic downturn and increased attention to the NVRA’s requirements, some states have seen an increase in voter registration at public assistance offices.  Will the increase in public assistance rolls add new voters to the rolls?   And if so, will they turn out to vote?

Issue #10 Partisanship and Litigation.

Since 2000, many states have witnessed a pronounced increase in lawsuits brought before Election Day, on such diverse topics as voting machines, voter ID, provisional voting, registration rules, challenges to voter eligibility, and early voting.  Some of this litigation is attributable to the fact that party-affiliated election officials run elections in most states.  At times, both Democrats and Republicans have alleged partisanship by secretaries of state affiliated with the opposing party.   Sometimes, these complaints have found their way to court, and federal courts have generally been willing to entertain these cases – if not always to grant relief.  Will we continue to see numerous lawsuits before Election Day?  Is it time to move authority for running elections away from party-affiliated officials to entities that are more insulated from politics?

Two Problems with the New Challenge to Section 5

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By Daniel P. Tokaji

On Wednesday of last week, private citizens and a private organization in Kinston, North Carolina filed a complaint challenging the constitutionality of Section 5 of the Voting Rights Act. This case, LaRoque v. Holder, follows last year’s U.S. Supreme Court decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), which raised questions about Section 5’s constitutionality but ultimately avoided deciding the question.

Plaintiffs in LaRoque are also unlikely to secure a determination of Section 5’s constitutionality, though for different reasons than in NAMUDNO. There are two barriers to the federal district court deciding the constitutional issue. The first is that plaintiffs probably don’t meet the prudential requirements for standing. The second barrier – even more problematic for plaintiffs – is that they lack a private cause of action to challenge the statute’s constitutionality. If the district court follows existing law, it is difficult to see how it can reach the constitutional issue.

Do Plaintiffs Have Standing?

LaRoque arises from a referendum in Kinston, a municipality located in Lenoir County, North Carolina, which is covered by Section 5. Up until now, Kinston has conducted partisan elections for mayor and city council. The referendum, approved by voters in November 2008, would switch from partisan to nonpartisan elections for these offices. The U.S. Department of Justice (DOJ) objected to this change under Section 5, on the ground that the absence of party affiliation on the ballot would harm the ability of African American voters to elect their preferred candidates of choice.

The City of Kinston has not filed a district court action seeking judicial preclearance, as it’s entitled to do under Section 5. Instead, the city council has apparently decided to accept DOJ’s preclearance denial, voting not to take the matter to court. For this reason, the plaintiff isn’t heentity directly subject to Section 5, as was the case in NAMUDNO. Instead, plaintiffs are “voters, prospective candidates, and proponents of citizen referenda,” including the one they would like the city to implement (Complaint ¶ 1.)

The first problem with a federal court entertaining the case is standing. In order to have standing, plaintiffs must satisfy both the requirements of Article III and prudential requirements that the Supreme Court has imposed. Under Article III: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright (1984). It is possible that at least some of the Plaintiffs meet the three requirements encompassed by this standard: 1) an injury in fact, 2) causation, and 3) redressability.

Even assuming that the minimum requirements of Article III are satisfied, however, the LaRoque plaintiffs probably don’t have standing. For a federal court to hear this case, they must also meet the separate prudential standing requirements, the judicially “self-imposed limits” on the exercise of federal jurisdiction. As a general rule, prudential standing bars the assertion of a right by a third party – i.e., by someone other than the rightsholder. As the Court put it in Elk Grove v. Newdow (2004), there’s a “general prohibition on a litigant’s raising another person’s legal rights.” To the extent there is a rightsholder in this case, it’s not the private individuals and group that brought suit, but rather the City of Kinston.

There are exceptions to the general bar on a litigant asserting another person’s legal rights, but it’s doubtful that they apply here. The Court has allowed third-party standing, where there’s a special relationship between the would-be plaintiff and the rightsholder, and where there’s a genuine obstacle to the rightsholder asserting his or her own rights. A paradigmatic example of a special relationship is that between a doctor and a patient seeking contraception or an abortion, as in Singleton v. Wulff (1976). An example of a genuine obstacle to the rightsholder asserting his or her own rights is NAACP v. Alabama (1958), in which the NAACP asserted the associational rights of its members who, for good reason, wished to remain anonymous.

In LaRoque, there appears no be no special relationship or genuine obstacle to the rightsholder making the constitutional claim Plaintiffs seek to assert. While Plaintiffs supported the referendum and want the city to implement it, this probably isn’t enough of a special relationship to overcome the general bar against third-party standing. Nor is there any genuine obstacle to the city asserting its own rights. The city is free to challenge the constitutionality of Section 5, if it chooses. There’s no obstacle to the city asserting its rights – it’s simply decided not to do so.

The fact that the city has apparently chosen not to sue provides an additional reason for denying prudential standing. In Elk Grove, the Court rejected third-part standing of a parent seeking to challenge the words “under God” in the Pledge of Allegiance, on the ground that the interests of the parent and child were “potentially in conflict.” It was doubtful, in that case, that Mr. Newdow had legal authority to speak for his daughter. In this case, the interests of the city and would-be plaintiffs appear to be not just “potentially” but actually in conflict, given Kinston’s decision not to challenge the preclearance denial or the constitutionality of Section 5. Accordingly, plaintiffs don’t seem to have prudential standing.

Do Plaintiffs Have a Right of Action?

Prudential standing isn’t the only problem in LaRoque. The second obstacle to the district court entertaining Plaintiffs’ constitutional claims is that they have no private right of action. Plaintiffs are private citizens and a group suing a federal official, the U.S. Attorney General, for allegedly violating the U.S. Constitution. They cite no federal statute that gives them a right to sue, and I don’t believe that one exists.

There’s no federal statute that generally confers a right of action on plaintiffs claiming that a federal official has violated their constitutional rights. Section 1983 gives a right of action to those claiming that a state or local official has violated their constitutional rights, but § 1983 doesn’t cover violations committed by federal officials.

Plaintiffs might assert that the Administrative Procedures Act (APA) allows them to challenge DOJ’s preclearance decisions, but the Supreme Court closed off that avenue in Morris v. Gressette (1977). In that case, the Court held that Section 5 precluded private plaintiffs from obtaining judicial review of the Attorney General’s preclearance decisions. It’s true that Morris dealt with a decision by the Attorney General not to object – rather than a decision to make an objection, as in LaRoque. But it’s hard to see why this should matter, for the purpose of APA reviewability, since Morris held that the preclearance scheme created by Congress precludes APA review.

In other contexts, the Supreme Court has implied a right of action on plaintiffs alleging a violation of their own constitutional rights. The leading case is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), an opinion by Justice Brennan that allowed a private plaintiff to bring a damages claim against federal agents who had allegedly conducted an unconstitutional search and arrest. In the decades since Bivens was decided, the Court has curtailed the availability of an implied right of action to challenge federal officials’ violation of constitutional rights. It has created an exception where there is an “alternative existing process” for protecting the right at issue and declined to extend Bivens beyond its core of protection for individual constitutional rights. More broadly, the Court has increasingly viewed the judicial implication of rights of action – under Bivens and in other contexts – with suspicion. As Justice Scalia has put it, with his own inimitable flair: “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action.” Correctional Services Corp. v. Malesko (2001) (Scalia, J., concurring).

It’s very hard to see how a right of action could be implied for the private plaintiffs in LaRoque. They can’t plausibly claim that their constitutional rights have been violated. The claim instead is that Congress has acted in access of its delegated powers. If there is a “victim” of this alleged constitutional violation, it’s Kinston and similarly situated state and local entities, by virtue of the unwarranted intrusion on their sovereignty. I can’t think of a case in which a cause of action has been implied in favor of private individuals under similar circumstances.

Because there is no statute that expressly confers a right of action upon them, the LaRoque Plaintiffs must persuade the courts to create one. For the district court to do so would be a stretch, one that runs contrary to the direction in which the Supreme Court has moved in recent decades.

Should Plaintiffs Be Able to Sue?

To this point, I have been examining whether the LaRoque plaintiffs can sue based on existing law on standing and private rights of action. Many people – myself included – believe that the Supreme Court has been too restrictive in these lines of cases, failing to provide access to federal court in circumstances where it’s warranted. Of course, Congress could certainly create a right of action for citizens like those in LaRoque, who wish to challenge a preclearance denial where the affected jurisdiction affected declines to do so (assuming there’s no Article III bar). Alternatively, the Supreme Court could change the law to allow an implied right of action in this sort of case.

Even for those of us who support a broadening of private rights of action, it’s questionable whether that’s appropriate in this case. After all, Kinston residents who want to see the referendum implemented do have a remedy. They can go to the city council and ask it to revisit the decision not to seek judicial preclearance – or, alternatively, try to persuade the city to bail out of coverage. Failing that, citizens can try to persuade voters that the city council’s decision was wrong and have councilmembers voted out of office.

Supporters of the referendum might counter that this course of action is unlikely, given that African Americans constitute a majority of Kinston’s registered voters. Were whites consistently outvoted in city elections, this might be a reasonable argument for creating a right of action. But according to the DOJ’s letter denying preclearance, blacks have actually been a minority of voters in most of the city’s recent elections. If that’s true, it’s hard to see a good reason to change existing law, and allow private plaintiffs like those in LaRoque to sue, contrary to the wishes of the affected government entity.

The Supreme Court stated in NAMUDNO that it believes there to be serious questions about whether Section 5 is constitutional. There will surely be a case that provides a suitable vehicle for raising that issue again. In my view, LaRoque isn’t that case.

The Occlusion of Equality in Campaign Finance Law

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By Daniel P. Tokaji

Last Thursday, federal courts decided two significant campaign finance cases. This comment steps back from the fine points of campaign finance law to examine the overarching problem with the Supreme Court’s campaign finance jurisprudence – namely, its rejection of equality as a central value in our democracy. The body of law that the Court has developed over three and one-half decades has led not only to a stunted constitutional doctrine, but also to an impoverished public discourse. For those who believe that equality is a central democratic value, a reinvigoration of this discourse is long overdue.

Last Thursday, federal courts decided two significant campaign finance cases. In SpeechNow.org v. Federal Election Commission, the D.C. Circuit struck down limits on contributions to a nonprofit group that sought to make independent expenditures for and against federal candidates. In the other case, Republican National Committee v. Federal Election Commission, the D.C. federal district court upheld provisions of the Bipartisan Campaign Reform Act (commonly known as “McCain-Feingold”) limiting “soft money” contributions to political parties. These decisions follow the U.S. Supreme Court’s January decision in Citizens United v. Federal Election Commission, which struck down a prohibition on corporate expenditures for or against federal candidates.

The details of these cases can be mind-numbing, especially for those who don’t closely follow this area of law. Focusing on the details, moreover, can cause us to miss the bigger picture.

This comment steps back from the fine points of campaign finance law to examine the overarching problem with the Supreme Court’s campaign finance jurisprudence – namely, its rejection of equality as a central value in our democracy. The body of law that the Court has developed over three and one-half decades has led not only to a stunted constitutional doctrine, but also to an impoverished public discourse. Ironically, the effect of the Court’s First Amendment jurisprudence has been to suppress discussion of equality as a justification for regulating politics. For those of us who believe that equality is a central democratic value, a reinvigoration of this discourse is long overdue.

Buckley’s Rejection of the Equality Rationale

The central problem can be traced to a sentence in Buckley v. Valeo, the Supreme Court’s 1976 decision setting the framework for judicial review of contribution and expenditure limits. According to Buckley: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” With these words, the Court took off the table the argument that spending limits might actually enhance our democratic discourse. Buckley presumed that a system of unlimited campaign expenditures works best and, at the same time, eliminated the promotion of systemic equality as a basis for spending limits. The prevention of corruption or its appearance became the sole permissible justification for limits on individual spending.

In the decades following Buckley, the constitutional debate over campaign finance too often got sidetracked over whether money was really speech or, as Justice Stevens argued, “property … not speech.” This is the wrong question. Whether or not money is speech, it clearly facilitates political expression. Money is necessary to have one’s political views heard, and therefore to participate meaningfully in campaign-related debates.

The observation that money facilitates speech doesn’t end the constitutional inquiry, however, but is just the beginning. If one accepts the proposition that money facilitates political speech, a corollary is that those without resources aren’t able to participate meaningfully in the conversations of democracy. The have-nots in our society therefore enjoy less political influence than the haves – and much less than the have-alots. In a society committed to political equality, this state of affairs is deeply troubling.

Citizens United and the Occlusion of Equality

Buckley eliminated equality as a justification for individual spending limits. When it came to corporate expenditures, however, the Supreme Court’s opinion in Austin v. Michigan Chamber of Commerce allowed limits due to “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.” This is a form of the equality rationale, albeit a narrow one – and an outlier from the rest of the Court’s campaign finance jurisprudence, which disallowed equality as a rationale for spending limits. The Court’s decision in Citizens United this January hammered the last nail in equality’s coffin, expressly overruling Austin‘s anti-distortion rationale.

Citizens United may have brought greater consistency to the law, but it did so by rejecting a value central to our democracy. By eliminating equality as a justification for limits on corporate campaign spending, the Supreme Court has further distorted the public discourse over the rules that should govern the political process. Equality is the idea that, like Voldemort, must not be named.

The most harmful consequence of the Court’s campaign finance jurisprudence, from Buckley to Citizens United, is the occlusion of equality as a democratic value. Yet political equality is a principle that the Court has recognized and, indeed, held constitutionally required in other contexts.

An example is the “one person, one vote” principle, based on which the Court struck down legislative districts of unequal size in cases like Reynolds v. Sims. An even more helpful example is Harper v. Virginia, in which the Court struck down state poll taxes, on the ground that they improperly make wealth a measure of one’s qualification to vote. Harper was right to hold that one’s personal resources shouldn’t impede the right to vote. The same is true with respect to other forms of political participation. Without some limits on campaign spending, wealth will invariably be a determinant of political influence – including both who gets elected to office and what laws they pass (or choose not to pass) once in office.

Resurrecting Equality

Last week’s decision in SpeechNow.org exemplifies the consequences of the Court’s occlusion of equality. Federal law purports to limits contributions to groups like SpeechNow, which seeks to spend money for and against candidates for federal office.

As explained above, preventing corruption and its appearance is the only permissible basis for spending limits. Because SpeechNow planned only to make independent expenditures, the D.C. Circuit concluded that there was no real risk of corruption arising from contributions to that group. Under settled law, which holds that equality isn’t a legitimate justification for contribution limits, that was the only reasonable conclusion. But if equality were a permissible rationale, the case would have come out the other way. Even without coordination between federal candidates and SpeechNow, a lack of regulation tends to give wealthy donors an advantage over the rest of us, in their superior ability to influence the political process.

Until equality is given a place in conversations over campaign finance regulation, the prospects for meaningful reform are extremely limited. For progressives seeking to promote democratic equality, the task is twofold. In the short term, we need to prevent the Supreme Court from doing further damage to existing law. This will require a defense of cases like RNC v. FEC, which challenge what is left of McCain-Feingold and other laws that limit campaign spending.

In the long term, we need to reinvigorate the discourse over campaign finance, by resurrecting equality as a justification for regulation. The current Supreme Court will not be receptive to this argument, but this Court will not sit forever. We need to develop a new jurisprudence, one that respects the ideal of all citizens being able to participate as equals in the conversations of democracy. As advocates, academics, and ordinary citizens, we must lay the groundwork for this new jurisprudence and, by doing so, help reinstate equality as a central value in our democracy.

Citizens United: A Long-Term Perspective

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A quarter-century from now, when we celebrate the bicentennial of de Tocqueville’s Democracy in America, Citizens United may look less of a watershed and more of a muddle.  But a muddle would not be bad, in terms of the health of the nation’s democracy, if it means Congress is attempting to limit in focused ways particular forms of corporate spending that injures the public interest–and if the Court comes to respect these targeted congressional responses.

A quarter-century from now, when we celebrate the bicentennial of de Tocqueville’s Democracy in America, what will we think of Citizens United? The majority opinion was written to be revered, in the way that New York Times v. Sullivan or The Pentagon Papers Case has been. But perhaps, instead, it may be seen as a stain on the fabric of democracy, one sending the country into another era of sullied politics like the one before the Progressive Era took hold. The 90-page dissent is certainly written with this sort of prognosis in mind.

Or, by 2035, Citizens United may no longer be good law. After all, the doctrine of stare decisis that replaced Austin and McConnell with Citizens United just as easily could revert back to Austin and McConnell within the next twenty-five years. If you think such flipping-and-flopping is too unseemly for the Supreme Court, you’ve forgotten your Tenth Amendment jurisprudence: National League of Cities (1976) replacing Maryland v. Wirtz (1968), only to be replaced itself by Garcia (1985), which was then superseded by New York v. United States (1992) and Printz (1997). It took twenty years to undo Austin; McConnell lasted barely more than six; but within the decade or two we might have a new decision either explicitly or implicitly eviscerating the heart of Citizens United, whatever that decision might say about the Court’s fidelity to the objectivity of constitutional law.

Most likely, however, I think we will look back on Citizens United as one of the Court’s many muddled steps since Buckley v. Valeo to draw principled lines on the extent to which the First Amendment prohibits Congress and state legislatures from regulating campaign spending. Opponents of Citizens United cannot, or should not, pretend that some such lines don’t need to be drawn. Even if Bellotti (the bête noir of progressives) were overruled from the left, there would need to be a stopping point: may corporations be prohibited from publishing tracts of political philosophy, like A Theory of Justice by John Rawls? I think not, but then which “issue” speech by corporations is constitutionally protected, and which is not?

But fans of Citizens United also should not pretend that the era of inevitable line-drawing is over, now that they have their definitive overruling of Austin. In fact, the majority opinion in Citizens United itself told us that it is not. Left for another day, we are told, is the potential problem of campaign spending by foreign-owned corporations, as well as foreign governments themselves. Although the Court today did not answer the question (because it had no occasion to do so), one must doubt very much that it would invalidate a carefully drawn statute designed to prevent foreign governments from spending money to influence U.S. elections. Yet if that is true, the line-drawing task begins. What about foreign corporations under the control of foreign governments?

Citizens United confronted a statute that banned independent electioneering by all corporations. Even if one would have sided with Justice Stevens in dissent, one must acknowledge the point that much spending by many corporations would not corrupt members of Congress or otherwise improperly undermine the electorate’s ability to choose among competing candidates. Citizens United speaks in absolutist terms, but it faced an absolutist statute. It does not, and cannot, tell us what the Court would do if it were faced with a focused statute, targeted at curtailing corporate spending that is truly pernicious, and backed by evidence of its particular perniciousness.

The evil to be avoided is industries that require extensive government regulation, because of the risk to public safety or well-being if they operate without public supervision, being able to purchase politicians by bankrolling their campaigns (and thereby causing the politicians to deregulate regardless of the public interest). If it turns out that these regulated corporations can successfully do that by spending large sums independently of the politician’s own campaign itself, and this corporate control of legislative decisions can be shown, then a statute targeted at the specific industries and setting an appropriate limit on the amount of spending by businesses in these industries (rather than banning any such spending altogether) might stand a chance of success even after Citizens United.

The majority in Citizens United, even under its narrow conception of corruption, acknowledged:

“If elected officials succumb to improper influences from independent expenditures . . . then surely there is cause for concern. We must give weight to Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and . . . [a]n outright ban on corporate speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption” (p.45)

There is ambiguity and some potential wiggle-room here. A $1 million ceiling on the amount that the operator of a nuclear reactor can spend to support a Senate candidate, adopted in the wake of efforts by the nuclear reactor industry to lessen safety standards, is not an “outright ban” nor disproportional to the valid concern. “Asymmetrical” is the opposite of “narrow tailoring,” and thus Citizens United accepts the notion that Congress can take appropriately measured responses.

Thus, Congress needs to go about carefully and prudently testing the limits of Citizens United. It should start with the most compelling categories of industries, the ones where the private sector is essentially undertaking a government function because the government has determined that private sector—as long as it operates under strict supervision—can perform the task more effectively than the government itself. In this context, Congress can say it is concerned not only about the risk of its being corrupted by the regulated entities, but insofar as the regulated entities are acting as surrogates or agents of the government itself, Congress wishes to avoid having an instrumentality of government authority takes sides in a congressional campaign. Just as the Nuclear Regulatory Commission may not spend on behalf of a congressional candidate, so too may not the operators of nuclear reactors if they are performing the government’s function at the government’s behest.

If over the next twenty-five years, Congress adopts a series of laws that are narrowly focused and incremental in this way, then the landscape we are likely to encounter is one where Citizens United has been superseded as a practical matter by a series of decisions that define, perhaps somewhat erratically, what Congress can and cannot do in terms of limiting corporate spending to support and oppose candidates.

If this landscape indeed materializes, it will signify that the state of democracy in America is much healthier then that it is today. First, the focused constraints adopted by Congress—and accepted by the Court notwithstanding Citizens United—will be more democracy-enhancing than the law as its stands right now, with the Court’s having invalidated the absolute ban on all corporate spending. The new landscape will come closer to rooting out what is truly pernicious, and yet at the same time leave untouched what is inconsequential or even beneficial. Narrow tailoring, over time, is potentially win-win.

Moreover, the very act of Congress engaging Citizens United in this way would be a healthy sign for our democracy. It would show Congress, on behalf of the public, taking responsibility for the quality of the democratic process and doing so in a fine-tuned, thoughtful manner. It would be, in essence, the democratic process improving itself.

But if Congress cannot engage Citizens United in this way, that would be a truly bad sign. It would likely indicate problems much bigger than Citizens United itself. As one observes Congress these days, one cannot help but wonder if the institution has become dysfunctional. The Broken Branch, to invoke the title of the book by Tom Mann and Norm Ornstein.

If a quarter-century from now, Congress remains dysfunctional, Citizens United will hardly have been the only cause. People will point to the filibuster, gerrymandering, and other factors that preceded Citizens United. And the bicentennial of de Toqueville’s book will not be a happy occasion. Let us hope that that is not the situation in which we find ourselves.

Let us hope, instead, that we look back upon Citizens United as a spur which helped motivated Congress to engage in institutional self-improvement, which started a process that reduced the nation’s democracy deficit.

This comment was written as a guest blog at Rick Hasen’s Election Law blog and is cross-posted here.