Last March, during a Federalist Society teleforum discussing the Supreme Court’s 4-4 decision in Friedrichs v. California Teachers Association, as an aside Prof. Richard Epstein summarized the effect a new liberal justice would have on the celebrated (and concurrently derided) Citizens United v. Federal Election Commission decision from 2010:
[I]n terms of its practical consequences, a case like Citizens United, which was 5-4 . . . I think that’s absolutely toast, and you will start to see comprehensive regulation of various forms of speech activities by corporations and ordinary individuals and so forth . . . .
The speech activity in the case was a 2008 documentary film that focused on various characteristics of Hillary Clinton. Prior to Citizens United, such films, if financed with corporate or union money, could be banned from broadcast within 60 days of a general election or, if they expressly called for the election or defeat of a federal candidate, banned entirely. Despite bipartisan enjoyment of the benefits of the decision, overturning it has served as the centerpiece of campaign finance reform ever since.
Indeed, in the months that followed Prof. Epstein’s comments, Hillary Clinton made reversing the decision part of her two-prong litmus test for Supreme Court nominees (the other a requirement to uphold Roe v. Wade). Less practically, but far more principled, she adopted Bernie Sanders’s position to introduce a constitutional amendment to assuage the effects of the decision.
Well, as of Tuesday, making Citizens United into toast will have to wait. That is, it is likely that the reverse-Citizens-United part of the campaign finance regulatory movement is now stalled indefinitely.
Donald Trump utilized strong rhetoric throughout his campaign, some of it echoing the anti-corruption hyperbole wielded by those opposed to Citizens United, but he has not aligned himself with stalwarts of increased campaign finance regulation. Though it is possible Trump may be amenable to so-called reform, many factors point against this. On Trump’s list of potential Supreme Court nominees, those who have ruled in campaign finance cases have shown fidelity to the same free speech principles affirmed in Citizens United. With Republicans maintaining control of the Senate, Mitch McConnell will likely remain majority leader and continues to be wary of reform, himself having served as a plaintiff in a case challenging the bans that were later overturned in Citizens United.
Perhaps most importantly, Trump’s campaign counsel, Don McGahn, previously served as a commissioner on the FEC and took his duty to follow the case seriously. (I interned for McGahn at the agency in 2008.) Moreover, McGahn was instrumental in shoring up free speech and due process protections during his tenure. Particularly if McGahn secures a position in Trump’s administration, it is unlikely pre-Citizens-United censorship will garner any support in the White House.
There may be room for campaign finance reform at the federal level, but it will likely not be a flavor palatable to those opposed to Citizens United. The Federal Election Campaign Act could use serious revisions, from significantly raising contribution limits as well as the thresholds for disclosure to revising prohibitions on soft money and allowing the national and state parties to work more closely together. Campaign coordination, a bugaboo that regulation proponents have latched onto in recent years, should be codified in law to end the deluge of baseless complaints that have been filed with both the FEC and the Department of Justice. Above all else, campaign finance law should be crafted to allow anyone to participate in the political process; it is currently a minefield that can shut up grassroots and independent voices who have no reason to know that they must file reports with the federal agency just to spend a little money on a political ad.
Campaign finance “reform” is certainly not toast at the state level. Though after Tuesday some reform organizations are largely left to celebrate useless non-binding resolutions against Citizens United that passed by popular vote in a few states and localities, some state regimes continue to reveal just how much damage campaign finance law does to free speech and political engagement. In light of nickel-and-dime fines over minute disclosure violations such as neglecting to disclose the occupation of donors to attempts to remove violators from office in prosecutions that stink of corruption worse than what stalwarts aim to cure, federal campaign finance law is far from the most pressing concern. Moreover, regulation proponents have all but announced that they will shift their efforts toward the state level.
For the moment, there is every indication that the censorship overturned in Citizens United will not be returning in the next four years, or perhaps much longer given the makeup of the Supreme Court in the coming decades. This is not the end of campaign finance regulation, but it will keep political speech and “the right to do politics” on a rightful perch above Congress and administrative whims.