Constitution Check: Is there a basic flaw in campaign finance law?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the ongoing debate over political speech and political transparency in campaign financing.

University_at_Buffalo_voting_booth-450x300THE STATEMENT AT ISSUE:

“Both an individual’s right to speak anonymously and the public’s interest in [campaign] contribution disclosure are now firmly entrenched in the Supreme Court’s First Amendment jurisprudence. And yet they are also fiercely antagonistic….Disclosure chills speech. Speech without disclosure risks corruption….The Supreme Court’s track record of expanding who may speak while simultaneously blessing robust disclosure rules has set these two values on an ineluctable collision course….This jurisprudence subsists on a fragile arrangement that treats speech, a constitutional right, and transparency, an extra-constitutional value, as equivalents.   But the center cannot hold.”

– Excerpts from a decision on January 21 by the U.S. Court of Appeals for the District of Columbia Circuit, upholding a rule issued by the Federal Election Commission giving corporations and labor unions that spend money on national elections permission to disclose the identities of only those who give money specifically to support campaign efforts, and not all donors who give at least $1,000. The rule may be tested in the Supreme Court.

WE CHECKED THE CONSTITUTION, AND

Congress has been attempting since 1907 to put some limits on money in politics, especially the regulation of money in huge amounts that are thought to risk the actual “buying” of elections by the wealthy.   The Constitution has generally made room for such regulation, but the regulatory urge has been challenged more often since the Supreme Court in 1976 began treating spending on campaigns as a form of speech broadly protected by the First Amendment.

Campaign finance law, in fact, has grown so complex in the past four decades that only a highly specialized group of lawyers really know what is or is not allowed by federal law, from one election to the next.   There is a specialized federal agency with the sole task of writing and rewriting the election finance rules – the Federal Election Commission.

A major part of this modern development is that the court has increasingly applied the First Amendment as a brake on regulation – most notably with its 2010 decision in the case of Citizens United. v. Federal Election Commission. That ruling, freeing corporations and labor unions to use their own money to spend as much as they want to influence federal elections, is very likely the court’s only election law decision that many Americans know by name.

It is as controversial today as when it was issued six years ago this month. For example, that decision is one of the contributing factors to the remarkable success in the current presidential campaign of Vermont’s Democratic-Socialist, Senator Bernie Sanders. His populist message, against big money in politics and big money in Wall Street, has clearly drawn an impressive following.   There is even a public conversation, not entirely frivolous, suggesting that the Citizen United decision may be overturned, some day, by a constitutional amendment.

The Supreme Court is no doubt aware of the controversy, because it hears protests over it from within the court itself, with some Justices dissenting from the general tolerance for ever-greater campaign spending.

Interestingly, though, there is also controversy among the Justices over the one finance reform measure that the majority has counted upon as a means of reducing the risk of big money to the integrity of federal elections. The majority has fervently embraced broad disclosure of the sources of campaign money, so that the voting public has some idea of who is trying to influence their votes. Disclosure, too, has some constitutional overtones, since it supposedly contributes to an informed voting public – presumably, a First Amendment goal in itself.

It is true that, over the years, the Supreme Court has also spoken approvingly of allowing people to speak out on political and other public issues through anonymous leafletting or other expression. After all, the famous Federalist Papers urging ratification of the Constitution were themselves anonymous, published by three authors using the common pen name “Publius.” The court, however, has not appeared to rank anonymity as high in the field of campaign finance law as it has disclosure of campaign money sources.

Some Justices, though, have picked up on a refrain among conservative pundits and scholars that too much disclosure is, itself, not good for political participation. The belief is that many donors wish to remain anonymous, in part because they fear harassment or worse if their identities become known.   Campaign funding organizations are often set up these days in forms that allow them to get around forced disclosure of their donors’ identities.

Now, corporations and labor unions themselves appear to be gaining a measure of added privacy for their campaign finance operations. Perhaps the most prestigious of the federal courts below the Supreme Court – the appeals court that sits in Washington, D.C. – has now become a potentially influential voice on this side of the campaign finance issue.   The quotation above is from a recent decision by that court, allowing a narrowing of the disclosure required of the identity of contributors to corporations and unions.

That court, in fact, has attempted to devalue somewhat the civic virtue of compelled disclosure, treating it as an ideas created by judges outside of the Constitution; it refers to the idea as “an extra-constitutional value” embracing “transparency” and it strongly implied that the Supreme Court has erred in treating it as the equivalent of speech rights in the form of campaign finance.

Treating political speech and political transparency as equals, the appeals court suggested, creates an “important constitutional question” that courts in general – including the Supreme Court – will have to confront at some point. This decision, of course, will gladden the hearts of political organizations who want to do more to secure privacy for their contributors.   A decision like that from an important court adds significantly to public discourse on the subject.

At the same time, however, advocacy organizations that work to curtail big money in politics are an energetic and well-financed group, too, and it would be no surprise at all if they attempted to test the Supreme Court on its commitment to disclosure sooner rather than later.

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