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League of Cities (1976) replacing Maryland v. Wirtz (1968), only to be replaced itself by Garcia (1985), which was then superseded by New York v. United States (1992) and Printz (1997).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.

The overruling of Austin would not automatically signal the end of congressional limits on electioneering by business corporations. Instead, it would just mean that the fight over the legitimate scope of those limits is about to get underway. 

When Seth Waxman rose as the last of the four advocates in today’s reargument of Citizens United v. Federal Election Commission, he understandably echoed the heart of the argument that won the day six years earlier in McConnell v. FEC. Invoking “sober-minded” Elihu Root and the spirit of Teddy Roosevelt, Waxman gave an impassioned plea for the Court to preserve the rationale that animated the original century-old ban on electioneering involvement by business corporations:

“[T]he idea is to prevent the great companies, the great aggregations of wealth from using corporate funds directly or indirectly to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests as against those of the public.” (Transcript, p. 71.)

At this point, Justice Scalia interrupted to ask how this idea applied to the vast majority of corporations, which have modest economic resources:

“[T]he amicus brief by the Chamber of Commerce points out that 96 percent of its members employ less than 100 people. These are not aggregations of great wealth. You are not talking about the railroad barons and the rapacious trusts of the Elihu Root era; you are talking mainly about small business corporations.”

Waxman acknowledged the point and responded by trying to say that Congress was entitled to legislate more broadly than perhaps absolutely necessary because it was acting to protect “the very foundation of democratic republican [institutions], that is the notion of integrity in representative democracy.” Justice Scalia persisted:

“I don’t understand that answer. I mean, if that’s what you were concerned about, what Elihu Root was concerned about, you could have said all corporations that have a net worth of more than, you know, so much or whatever. That is not what Congress did. It said all corporations.”

This exchange between Waxman and Scalia seems to me the heart of the matter, and it signals what we can expect to transpire if (as many observers believe) a majority of the Justice will use the Citizen United reargument as an occasion to overrule the Austin and McConnell precedents upholding bans on electioneering by all business corporations.

Sometimes it seems that both proponents and opponents of Austin agree that, if that precedent is overruled, then all business corporations—no matter how large—will have a First Amendment right to spend unlimited sums of their general-treasury funds on electioneering. ExxonMobil, for example, will suddenly have a First Amendment right to spend billions to elect proponents (and defeat opponents) of its oil-drilling interests. Cardinal Health will have a First Amendment right to spend millions to elect Members of Congress sympathetic to its position on health care legislation. And banks bailed out by the government will have a First Amendment right to use these bailout funds to elect a Congress that will defeat measures to increase regulatory scrutiny over these banks’ activities. But as Justice Scalia’s questioning of Waxman indicates, this parade of horribles does not necessarily follow from overruling Austin. Just because Congress cannot prohibit all electioneering by all business corporations, it does not mean that Congress must permit any amount of electioneering by any corporation. To draw such an inference is a logical fallacy (one for which I’m sure logicians have a name.)

On the contrary, as I’ve observed previously, if Austin is overruled, a whole new line of line-drawing challenges opens up. Today’s oral argument tentatively began to explore that new terrain. Justice Scalia did so when he suggested that a statute that applied only to corporations with a certain net worth—how much?—might well be constitutional under the First Amendment even after overruling Austin. Much earlier in the oral argument, Justice Ginsburg asked if Congress could ban electioneering by corporations with significant ties to foreign governments. (Ted Olson, Citizens United’s attorney, responding by suggesting that perhaps Congress could.) That question hints at a whole new approach Congress might take: regulating corporations by their characteristics, not just their net worth. As I’ve indicated elsewhere, corporations that operate functionally as extensions of the government itself (like defense contractors arguably do), might fall into a different regulatory category for purposes of First Amendment analysis than conventional “private sector” retail corporations.

To be clear, Justice Scalia wasn’t saying today that he necessarily would uphold a more narrowly tailored statute that limited its applicability to corporations with a high net worth. What Scalia would considered narrowly tailored in this regard might be very different what others might, including some of his conservative colleagues on the Court (like Kennedy). But the essential point remains. The overruling of Austin would not automatically signal the end of congressional limits on electioneering by business corporations. Instead, it would just mean that the fight over the legitimate scope of those limits is about to get underway.

In reading the amicus brief in Citizen United filed by the congressional sponsors of the McCain-Feingold law, I am struck—and impressed—by the candor with which they address head-on the “vehement[] disagree[ment]” that some Justices have towards Austin and McConnell.  Any defense of these precedents, which would prevent their overruling, must convince a Justice of the obligation to retain them despite this vehement disagreement.

In reading the amicus brief in Citizen United filed by the congressional sponsors of the McCain-Feingold law, I am struck—and impressed—by the candor with which they address head-on the “vehement[] disagree[ment]” that some Justices have towards Austin and McConnell. The brief observes that this vehement disagreement is not grounds for overruling, precisely because there is nothing new about this fierce opposition to those precedents on the part of some Justices.

Consequently, and with even more candor, the brief warns that, if Austin or McConnell is overruled, the impression may be that the mere change in membership on the Court—rather than any other development—is what caused the overruling. To support this point, the brief quotes from an opinion by Justice Stewart, of which I was previously unaware (or had forgotten):

“Given the unusual circumstances here, overruling precedents may well suggest that the outcome rested on ‘a ground no firmer than a change in [the Court’] membership, which would ‘invite[] the popular misconception that this institution is little different from the two political branches of government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.’ Mitchell v. W.T. Grant Co., 416 U.S. 600, 635 (1974) (Stewart, J., dissenting). Such a decision could threaten the Court’s legitimacy in the eyes of the Nation and undermine the respect this Court’s precedents should command.” Brief at 11-12.

The brief clearly wants to put Austin and McConnell in the category of Roe and Miranda—big constitutional decisions that have both vociferous opponents and supporters, on and off the bench—and thus Citizens United needs to adhere to the controversial precedents in the same way that Casey and Dickerson did.

I personally am very sympathetic to this line of argument and hope that it can be persuasive to Chief Justice Roberts or Justice Alito, but wonder whether it will be. As I recall, at his confirmation hearing, Roberts spoke of the respect Justices need to accord one another for the reasonable interpretations of the Constitution with which they may disagree, even strongly. The doctrine of stare decisis, even as it applies to constitutional cases, is built on a premise (I recall Roberts saying) of the Justices recognizing that each of them acts in good faith in an effort to interpret the Constitution correctly as each of them sees it. Respect for constitutional adjudication under Marbury, as a form of law, requires that Justices acquiesce in the good-faith interpretations of the Constitution by previous majorities of the Court, when the Justices have no basis for overturning those prior good-faith decisions other than their own disagreement (however strong) with them.

But will this argument work if the Justice feels the tug of the First Amendment pulling in the other direction? One major aspect of our constitutional tradition, stated explicitly sometimes and only implicitly on other occasions, is that the Court has a special role in protecting the value of free expression—especially the expression of political opinion—so that democracy itself is not subverted by legislation. Thus, if a Justice is really convinced that Austin is wrong—horribly wrong, even if decided in good faith by other (egregiously misguided) Justices—can the Justice accept that stare decisis demands adherence to this especially pernicious precedent? The situation is not analogous to Roe or Miranda. Those precedents, assuming one believes they were terrible mistakes, undermined democracy only with respect to a fairly narrow field of social policy: abortion in the one case, and the rights of criminal suspects in the other. Austin (including its extension in McConnell), if one believes it is terribly wrong, undermines democracy across the board, by depriving citizens of the ability to hear political opinions that would otherwise be expressed to them were it not for the suppressive legislation. This crippling of democracy, if one sincerely believes it that, applies to any field of social policy: health care reform, taxes and spending, energy and the responsible use of natural resources, and on and on. In the face of such a wholesale danger to democracy, isn’t a Justice obligated to overrule—the Justice’s highest duty being to the Constitution’s preservation of democracy, and not to the Court’s preservation of its own precedents?

It is in the face of questions like this that I wish the brief had gone even further in discussing the demands of stare decisis in the context of First Amendment precedents concerning campaign finance regulation—and that the academic community had also done more to explore this topic, on which the brief might then have relied. I think the application of stare decisis to Austin and McConnell calls for a complex interrelationship between (1) the obligation to adhere to precedent even when convinced it is wrong and (2) views about the degree of wrongness of a precedent from the perspective of First Amendment “first principles”.  I think the task is to show that there is a range of reasonable conceptions of democracy, and specifically the role of free expression in preserving it, that are consistent with the First Amendment. A Justice may think a particular conception of democracy wrong, but if it is within the bounds of reasonableness, then a Supreme Court precedent founded on that reasonable conception of democracy should get the kind of respect under stare decisis that Chief Justice Roberts spoke of at his confirmation hearings. Fidelity to the rule of law under Marbury, and thus to the Court’s good faith interpretations of the Constitution, should come first as long as those prior interpretations are within the range of reasonableness for the role that free expression plays in a democracy.

This is not to say that a Justice must come to believe that Austin was correct in order not to overrule it. To say that would give stare decisis no role in this context. Rather, the Justice must come to see Austin, although wrong in his eyes, as not so egregiously wrong as to be outside the bounds of reasonableness as a decision about the role that free expression plays in a democracy. There is play in the joints, so to speak, about how a democracy organizes itself in relationship to certain aspects of free expression (including the role that economic resources play in funding that free expression). While the Justices are responsible for vigilantly policing the outer boundaries of how the democracy organizes itself in these regards (even to the point of owing no deference to prior Court precedents that misperceive this outer boundary), the Justices must not impose their own preferred vision of democracy among the reasonable alternatives—especially not when the Court’s precedents have previously sustained a different reasonable alternative.

Thus, a defense of Austin and McConnell cannot rely on stare decisis alone, which is why the brief in Citizen United of McCain-Feingold’s sponsors also attends to their merits under the First Amendment. I found the brief persuasive on this ground as well, but then I’m hardly the one who needs convincing. I don’t think Austin and McConnell were incorrect in the first place, and in any event it is the views of Roberts and Alito—not mine—that matter. Did this brief and the others in the case do enough to convince either Roberts or Alito that Austin and McConnell, while wrong from their perspective, are not so egregiously wrong to be outside the bounds of reasonableness as an account of the role of free speech in a democracy and thus deserve adherence under an appropriate conception of stare decisis applicable in this context?

We shall see, but I might have tried more of a slippery slope argument on this score. There is nothing like a slippery slope argument, which posits a difficult line-drawing problem, to show that a precedent—even if incorrect—is not egregiously or unreasonably so. To be sure, the line might have been drawn better in a somewhat different place. But how horrendous can it be that the Court previously drew the line where it did?

The slippery-slope defense of Austin would go something like this: some corporations (and unions), even if not all, can be subjected to a ban on the use of their general-treasury funds for candidate advocacy.  Which corporations? At least those that have peculiarly close connections with the government itself, so that their expenditures on campaign ads risk being either the equivalent of incumbent officeholders attempting to abuse their positions of authority to keep themselves in power (a form of subversion of democracy, which would be at cross-purposes to the First Amendment) or a corruption of officeholders by particularly powerful private interests in a special position to undermine their integrity or a combination of both. Examples of these “public-sector corporations” would be the core components of the nation’s banking system, regulated utilities, and defense contractors.

An argument along these lines might acknowledge that the First Amendment analysis is somewhat different if a hamburger restaurant, like Wendy’s or McDonald’s, attempts to use general-treasury funds for campaign advocacy, rather than the First National Bank of New York (or some other bank with legal ties to the Federal Reserve System and the nation’s money supply), or American Electric Power (which operates highly regulated nuclear plants), or Lockheed (which builds military jets). But if the proper line under the First Amendment is between public-sector and private-sector corporations, rather than between for-profits under Austin and non-profits under MCFL (the Court’s current line), is the current Austin/MCFL line really so outrageously wrong that it demands overruling at the earliest possibility opportunity?

Up to now, efforts to defend Austin seem to have taken an either-or approach. Either defend on stare decisis grounds. Or defend as a correct interpretation of the First Amendment. It seems that there ought to be a defense that is a mixture of the two: Austin is not so antithetical to democracy that it does not deserve adherence by even a Justice who is strongly convinced of its error.