No, Gorsuch didn't "misstate" Citizen United's holding

With all due respect to Rick Hasen, I don't think Judge Neil Gorsuch "misstated" the holding of Citizens United v. FEC. Here are a couple of statements that arose during questioning:

Q: In Citizens United Justice Kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. Now President Trump has said that the reason he made campaign donations was so that when he needs something from them they're there for me. His campaign contribution favors. Shouldn't Congress not the courts make the determination about the potential for corruption? Especially if we're talking about quid pro quos.
A: Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicate that if proof of corruption can be demonstrated that a different result may obtain [sic] on expenditure limits.
. . .
I think Citizens United made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and I think there is ample room for this body to legislate even in light of Citizens United. Whether it has to do with contribution limits, whether it has to do with expenditures limits, or whether it has to do with disclosure.

One basic problem is that Senator Patrick Leahy's question is almost incomprehensible. Recall that Citizens United was not about "campaign donations," (i.e., contributions to political campaigns), or even about contributions at all, but about independent expenditures. The quotations from Trump are a non sequitur.

So Judge Gorsuch attempts to return the discussion, and here it's apparent it's about campaign finance quite broadly Is there "lots of room for legislation," including that some "expenditure limits" may be upheld if there is "proof of corruption"?

I would argue yes on at least three fronts.

The first is expenditure limits (speaking about expenditure limits generally) have been upheld by courts, notably in Bluman v. FEC, which affirmed a ban on political expenditures by foreign nationals. (This is the reason why Justice Samuel Alito mouthed "not true" at the State of Union when President Barack Obama stated that Citizens United would "open the floodgates" for "foreign corporations to spend without limit in our elections.") As Mr. Leahy's question was broadly construed, Judge Gorsuch's answer is, I think, appropriately broadly construed.

Second, even narrower, I think it's still the case after Citizens United that some such expenditures could be restricted. For instance, if Congress demonstrates that the expenditures aren't truly "independent" but coordinated, they can squarely be regulated (consistently with Buckley v. Valeo). That is, there's still room to demonstrate that some expenditures aren't truly "independent."

Third, and still narrower, I think there's still room after Citizens United, with the appropriate record, to regulate truly independent expenditures. According to the majority in Citizens United:

The McConnell record was "over 100,000 pages" long, yet it "does not have any direct examples of votes being exchanged for . . . expenditures." This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

So now begins a construction of what this Court's holding means. Here there's language suggesting a lack of evidence demonstrating corruption justifying regulation. Does it mean that Congress is forever prohibited in this area? Professor Hasen argues yes, citing American Traditional Partnership v. Bullock, that the Court "would NOT consider evidence of corruption to justify a spending limit."

But that's not what Bullock holds--at least, in my reading of the case. Bullock states, "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." Which expressly leaves open the possibility of meaningful distinguishing of the case! So the possibility remains open for regulation even after Citizens United.

There are three extremely important caveats to my line of reasoning.

The first is the unrealistic possibility that Congress would even legislate to regulate independent expenditures in the near future. But, of course, Judge Gorsuch is speaking to the possibility of legislation concerning expenditures.

The second is the unrealistic likelihood that the Court would ever view any record as "meaningful[ly] distinguishing" Citizens United, or offering sufficient evidence to suggest that quid pro quo corruption does exist concerning independent expenditures. But that unrealistic possibility of the acceptance of the Court is not expressly foreclosed by Citizens United's language--that is, Citizens United does not hold, as a matter of First Amendment doctrine, that independent expenditures can never be regulated. While some kinds of expenditures may well be regulated post-Citizens United, I imagine there's a matter of dispute about what kind of record would suffice for particular types of expenditures.

The third is that I probably am inclined to agree with a truncated, alternative take Professor Hasen offers, which is that Judge Gorsuch is "trying to soften [the] harshness" of Citizens United with his phrasing. And part of this is whether the real question posed is Citizens United in particular--independent expenditures from domestic corporations--or campaign finance quite generally. I think, to return to the beginning, the confusion of Mr. Leahy's question and the breadth of Judge Gorsuch's answer suggest that, charitably read, this answer is wholly appropriate. For those who are very specifically interested in the narrow issue of Citizens United, Judge Gorsuch's answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate. And for those who are interested in the more general campaign finance universe as Mr. Leahy's question suggests, it's wholly accurate and entirely defensible.

In today's WSJ: "Libertarians and Greens Can Win--Even If They Lose"

In today's Wall Street Journal, I have an opinion piece entitled, "Libertarians and Greens Can Win--Even If They Lose." It begins:

Gary Johnson and Jill Stein have a difficult task—though this election year it might be easier than most. The trick for third parties in American politics is convincing voters that they aren’t “wasting” ballots by supporting the Libertarian or Green Party candidate, since neither will make it to the White House.

But the unpopularity of Donald Trump and Hillary Clinton has provided the Libertarians and Greens with a new argument: Political parties that meet defined benchmarks on Election Day are given certain advantages under state and federal law. If Mr. Johnson and Ms. Stein manage to secure 5% of the popular vote—plausible given current polling—their parties will reap significant benefits.

"The Case for More Money in Politics"

I have a new piece at the Library of Law & Liberty, which responds to the following prompt:

Should a democracy, in the name of combating political corruption, and in the name of equal participation in politics, regulate the formation of political opinions—or should it be guided by the principle of the free formation of opinion that emerges spontaneously in society?

And I frame the issue as follows:

The phrase “campaign-finance reform” assumes a premise: that the way American political campaigns are run needs reform. Specifically, it assumes that the problems in our political discourse are principally ones about who pays for campaigns. These problems are alluded to, in breathless tones, as “money in politics,” or “dark money,” or, most glibly, “Citizens United.”

Consider, though, that there isn’t a problem with “money in politics” unless there is something bad that “money in politics” does. Rather than assuming a premise of reform, we ought to step back and consider whether or not campaign finance needs reforming. As we evaluate competing justifications for reform, we should be mindful, as citizens of a nation built upon regular and meaningful elections, that these be regulated to do the least damage to our constitutionally guaranteed rights, that is, to the open exchange of political views. As we will see, this priority is largely lacking in today’s reforms, whether existing or proposed.

Can foreign governments fund Hillary Clinton's presidential campaign?

The Wall Street Journal recently reported that foreign governments have increasingly been funding the Clinton Foundation since the organization, a non-profit operated by members of the Clinton family, recently began again accepting contributions from those governments. The Journal notes, "Recent donors include the United Arab Emirates, Saudi Arabia, Oman, Australia, Germany and a Canadian government agency promoting the Keystone XL pipeline."

As Hillary Clinton faces a prospective presidential campaign ahead, could these foreign governments fund her campaign?

The answer is no--foreign nationals may only give money to the Clintons' non-profit for its activities.

Despite raising half a billion dollars from foreign nationals, including foreign governments, in the last two decades, the Clintons cannot use money from foreign nationals to fund a federal election. The ban on foreign campaign contributions and expenditures stretches back nearly fifty years.

Some may remember President Barack Obama's State of the Union address in 2010, in which he criticized the Supreme Court's decision in Citizens United v. FEC (PDF) for a decision, he claimed, that "will open the floodgates for special interests– including foreign corporations – to spend without limit in our elections." Justice Samuel Alito visibly disagreed, PolitiFact found the claim "mostly false," and, shortly thereafter, the Supreme Court summarily affirmed the ban.

Foreign governments, then, may contribute to non-profits in the United States, like the Clinton Foundation. But they cannot contribute money to politicians or political action committees. And because the Clinton Foundation is organized as a 501(c)(3), the Foundation cannot engage in political campaigning. (There are political activities that foreign governments and non-profits can engage in, but they much narrower than activities related to specific candidates: they are usually tied to specific issues, like a ballot measure, or to non-partisan or general "awareness" activities.)

The only issue, then, is not a legal risk, but merely one of appearance--that a prospective presidential candidate is simultaneously heading a non-profit that is accepting contributions from foreign governments. And whether one views that as a real or potential conflict of interest or ethical dilemma is, I suppose, a matter of perspective.

Cuomo outspent Teachout by about 4500% in New York gubernatorial primary

New York includes fairly detailed expenditure disclosure requirements before an election, including a report as late as 11 days before a primary election. I looked at the direct expenditures by Andrew Cuomo since July 2013 and by challenger Zephyr Teachout. Schedule F lists expenditures for each, and Schedule L includes expenditure refunds.

By my calculations, Cuomo spent around $10,963,626.35, compared to Teachout's $243,418.51. That's good for a 45:1 ratio.

There are several caveats. First, it does not include outside expenditures by other groups or by the Democratic Party, a point of contention in this election. Second, it does not include expenditures that occurred in the last 11 days or that will be paid after the election. Third, it is expenditures, not contributions--the candidates each collected more than these amounts. And fourth, Cuomo knew he was running for governor long ago and had a longer lead in spending for the re-election campaign, which probably distorts his spending significantly. Nevertheless, he spent more than $3 million in the last couple of months alone.

His performance puts him in the 10th percentile of votes received among gubernatorial candidates seeking re-election--suggesting that money can't buy everything.

The Washington Post made a scary, misleading chart about McCutcheon

Campaign finance can be scary. Charts can communicate information in an easy-to-digest format.

So the Washington Post did a chart about campaign finance after McCutcheon v FEC (PDF), which found that federal biennial aggregate political contribution limits failed exacting scrutiny under the First Amendment and improperly abridged the freedom of speech.

The chart looks scary. (It's here.) According to OpenSecrets, 310 contributors (for contributions disclosed as of June 30, 2014) had exceeded the limit, which was previously at $123,000. It explains that an extra $11.6 million has been poured into elections this cycle, contributions that otherwise would have been prohibited prior to McCutcheon.

But the chart is misleading. Here's why.

First, it's important to note that the chart only includes data for these 310 contributors. That means there are thousands of other contributors left out who've been extremely active this cycle.

Second, it's only measuring those 310 contributors who exceeded the aggregate contribution limits. That, of course, is part of the point--it's meant to show the impact of McCutcheon.

But what's the articulated peril of McCutcheon? On the one hand, it's the concern that a few individuals are now capturing the political process with more money than they otherwise would have been able to contribute. That's limited in terms of influence--they can give no more to any individual candidate, but they can give the statutory maximum (per candidate) to every candidate.

But on the other hand, the concern is that these donors will have an outsized influence in the public debate--that their contributions, above and beyond the aggregate contribution limits, will have a corrosive effect on our public discourse. Political parties will be unusually beholden to these donors--even though the donors are capped per candidate, repeated donations to many candidates of a single party may have a more indirect corrupting effect.

So a better chart might be to look at these post-McCutcheon contributions, and compare them to all other contributions within the McCutcheon caps. The chart below uses the post-McCutcheon data from the Washington Post story, and uses the year-to-date contributions from others who comply with the pre-McCutcheon aggregate caps. It includes data from recent midterm elections, too.

Citizens United in Affordable Care Act litigation, Part VII

Following up on Part VI, we now have the Supreme Court's opinion in Burwell v. Hobby Lobby (PDF).

At oral argument (PDF), no one mentioned the Court's decision in Citizens United. That's probably appropriate, because Hobby Lobby turns primarily on a statute (i.e., the Religious Freedom Restoration Act), not the First Amendment. Granted, that statute purported to incorporate (and modify) the Supreme Court's earlier First Amendment jurisprudence--but that wasn't what the justices seemed to focus on. But that's where the justices appeared to have some of the most difficulty: deciding what, exactly, that jurisprudence may have included. (And there is voluminous analysis across the Internet on this.)

Indeed, the only mention of Citizens United arose in a fleeting mention in Justice Ginsburg dissent:


Corporations, Justice Stevens more recently reminded, "have no consciences, no beliefs, no feelings, no thoughts, no desires." Citizens United v. Federal Election Comm'n.

For previous coverage see:

Part I

Part II

Part III

Part IV

Part V

Part VI

(By the way, an interesting note for timing purposes: the Tenth Circuit was the first federal appellate court to reach this issue, last June. Cert was granted, and the case was then scheduled for oral argument on March 25. This June, the Tenth Circuit is the first federal appellate court to reach the issue of the constitutionality of marriage amendments post-Windsor.)

New Harvard Law Review pieces on campaign finance and McCutcheon

The Harvard Law Review has recently published two pieces examining the effect of McCutcheon v. FEC (PDF).

The Practical Consequences of McCutcheon, by Robert K. Kelner, chair of the Eleciton and Political Law practice at Covington & Burling, concludes that little will change as a result of McCutcheon due to pragmatic difficulties organizing super joint fundraising committees and the few individuals who were previously limited by the biennial contribution limits.

And After McCutcheon, by Jonathan S. Berkon & Marc E. Elias, both at Perkins Coie, concludes that political parties will have slightly more power and control after McCutcheon, as party committees will be able to pursue additional contributions from key donors (an argument echoing a point raised by Rick Pildes immediately after the case).

I commend both pieces to you--brief, thoughtful pieces from practitioners with important points.