Repealing the controversial decision is a pipe dream. And there are more promising avenues for campaign-finance reform.
From the moment the 2010 Supreme Court ruling Citizens United v. FEC came down, it scandalized liberals. The decision heralded the “hostile corporate takeover of our democratic process,” Rep. Rosa DeLauro (D-CT) thundered at the time.
In 2017, a commissioner of the Federal Election Commission resigned, claiming “since the Supreme Court’s Citizens United decision, our political campaigns have been awash in unlimited, often dark money.”* This was the animating sentiment of Bernie Sanders’s 2016 campaign for president; he even went so far as to claim that billionaires are simply “buying elections.”
This idea has given rise to a new liberal battle cry: Repeal Citizens United! Unfortunately, that tactic is naive and misguided, and relies on a misunderstanding of the law and politics surrounding the case. As we approach the 2018 congressional elections — and beyond that, the crucial presidential election of 2020 — it is more vital than ever to have a clear view of where this ruling fits into the mosaic of campaign finance law.
Such understanding will, in turn, shine light on what can be done to make the election process fairer and make politicians more responsive to all their constituents, not just the big spenders.
Some cities and states are already experimenting with programs that strengthen the voices of ordinary voters. Building on such efforts is likely to have far greater effects than continuing to demonize Citizens, whose logic is defensible on First Amendment grounds.
Most widespread in liberal circles is the idea that Citizens opened the floodgates to massive amounts of corporate spending in politics. But as many legal scholars have argued, the floodgates were already open. Citizens is not responsible for the massive amounts of money showered on favored candidates. Nor is it responsible for the rise of so-called dark money in politics.
Citizens didn’t upend our campaign finance system. It was a logical next step, given past court decisions.
Let’s put the hated decision into context. The inundation of elections with private cash is not the result of Citizens but rather was facilitated by the 1976 decision Buckley v. Valeo. That case established the legal framework sanctioning billions of dollars of independent private campaign spending. In it, the Court ruled that limits on campaign donations — direct donations to candidates — are constitutional but said it was unconstitutional to limit non-donation expenditures, such as independently funded advertisements.
Such independent spending — which cannot be coordinated with candidates, according to the Court — was protected under the First Amendment as not just speech but political speech. The idea is that money is a necessary instrument for supporting a political candidate, whether it’s paying for yard signs or taking out an ad in the newspaper.
Not unreasonably, the Court ruled that limitations on independent expenditures would constitute limitations on one’s ability to support a candidate through any number of media. Placing a dollar limit on such expenditures would arbitrarily prevent certain kinds of campaign support simply by the fact of how expensive they are.
Our inability to trace campaign donations to their source — the dark money issue — is the result of the lack of federal regulations to make disclosure mandatory. And such regulations are legal; the Court said as much in Citizens, with eight of nine justices agreeing on that point! The only thing standing in the way of transparency is congressional stonewalling. In 2010, Republican senators defeated a disclosure law 59 to 39, which would have made it more difficult for donors to use legal loopholes to hide their identities.
Citizens simply has not had the seismic legal impact that many think. Since Buckley protected money as speech, the only question was whether corporations were legitimate speakers. It may surprise some to hear, but the Court had already answered this question in 1978. In First National Bank of Boston v. Bellotti, the Supreme Court recognized a corporate right to free speech, concluding that the value of speech in the course of political debate does not depend on the identity of the speaker. Citizens simply followed the precedent of these two cases.
So when liberals intone that “corporations aren’t people,” thinking they are making a knock-down argument against Citizens, they miss the point. Citizens did not make corporations persons. And corporations do not need to be persons to receive First Amendment protections. Citizens upheld the liberty, provided by Bellotti, of corporations to speak, and they speak under the rules provided by Buckley.
The details were debated by expert lawyer Floyd Abrams and First Amendment scholar Burt Neuborne not long after Citizens came down. Abrams noted that even the liberal Justice John Paul Stevens, dissenting, recognized that the Court has “long since held that Corporations are covered by the First Amendment.”
Neuborne, in response, argued that corporations lack dignity and a conscience, which he thinks underpin the human right to free speech. But Justice Kennedy, writing for the slim five-justice majority, cited the long history of First Amendment protections for corporations. The Court had sided heavily with the Abrams view.
The Court seems inclined to limit the definition of “corruption” to explicit bribery
The only remaining question was whether there could be a justification for the government’s curtailing of that speech. Abridging political speech falls under the strictest category of judicial scrutiny; any law that does so must be justified by a “compelling state interest.”
One such objective, some suppose, is stopping corruption, a clear threat to the integrity of Congress. And indeed, in Randall v. Sorrell (2006), the Court reaffirmed that combating “corruption” rises to the level of a compelling state interest. But in Citizens, Justice Kennedy said the only kind of corruption that would count in this context is the most direct kind: “quid pro quo” corruption, which covers only vote-buying bribery.
No such vote buying was at issue in Citizens, since the controversy centered on the release of a privately funded campaign video during an advertising “blackout” period. Such off-limits periods, established by the McCain-Feingold legislation, paid insufficient heed to the Court’s precedents on money as speech and the high bar for restricting political speech.
In response to Kennedy’s narrow conception of corruption, Harvard Law professor and onetime presidential contender Lawrence Lessig has advocated for a broader idea of corruption. In his book Republic, Lost, Lessig spells out his notion of “dependence corruption,” whereby Congress is unduly responsive to big donors because they are dependent on them for campaign money.
He takes pains to argue on “originalist” grounds, hoping to appeal to the conservative majority of the Court, who attempt to cleave closely to the meaning of words as they are found in documents at the time of the Constitution’s drafting. Alas, his arguments have largely fallen on deaf judicial ears.
Where does that leave us?
We are almost certainly stuck with Citizens, not to mention Buckley and Bellotti. The major hope of many concerned lawyers and academics in the runup to the 2016 election has been dashed: the hope of filling the late Justice Antonin Scalia’s seat with a more liberal justice who might help reverse the decision. Instead, reformers got Neil Gorsuch.
So even if there were a stronger legal argument to be made against Citizens, that argument won’t attract enough votes in the Supreme Court. Desperation has led some, like Sanders, to push for a constitutional amendment limiting corporate campaign spending. But beyond being a pipe dream, given the institutional challenges, this tactic fails to take seriously the intricate First Amendment questions at issue.
The upshot of the Sanders campaign is its demonstration of the strength of a candidacy funded by small donations. As a candidate, Sanders rejected Super PAC funding in favor of donations averaging well under $100. Since Super PACs are the primary means individuals and corporations funnel their money to campaigns, it is historically noteworthy that a candidate without such support was capable of seriously contending for the presidency.
The lessons to draw from Sanders’s campaign is not that the system is healthy. Instead, we should conclude that the medicine to cure it may take the form of enabling citizens to make more Bernie-size donations. As of late, there has been an uptick in under-$200 donations to congressional races. In order to make such donations a staple in our democratic process, they should be supported by legislation.
Such a program has been introduced in Seattle, which gives away “democracy vouchers,”which could serve as a national model.
The basic idea is simple: Every eligible voter in Seattle receives $100 in vouchers, which they can freely donate to campaigns in the local city elections. This means every voter can participate in the pre-election process by using their money to “speak up” for candidates they endorse, and it enables lesser-known candidates to find financial support without bending the knee before big money special interests.
Theoretically, this ensures that every citizen has a baseline level of equal participation in the political process. It expands our understanding of political equality beyond “one person, one vote” to a wider notion of equal opportunity for electoral participation.
The local focus is a crucial first step to reshaping public participation in campaigns. As ACLU national legal director David Cole has argued, the most likely path to substantial federal campaign finance reform is by winning small victories in cities and states. Fostering state- and local-level initiatives accomplishes several things.
First, it draws more citizens into the debate over the proper role of money in politics — an essential step toward a sustained national conversation.
Second, it allows for political and legal experimentation. Because the Supreme Court is unpredictable, especially given the uncertainty of Justice Kennedy’s swing vote, attempting several strategies at once for public funding increases the chances that a constitutionally passable version is found.
More experiments also mean more models that can be used as contrasts to the federal system, making the weaknesses of the federal system all the more clear.
Third, such an approach will spark important legal work, which is far from a purely academic matter. By pursuing ballot initiatives and enacting local laws that address money in politics, we will invite legal challenges by entrenched, moneyed interests. This forces judges to issue ever more opinions on what is constitutional, justifying themselves along the way.
Higher courts will receive appeals and further scrutinize this reasoning. This, in turn, will attract legal academics like moths to a flame, whose work will be cited by advocates and courts.
All of this will arm the public with constitutional arguments to defend the integrity of our democracy.
There is no guarantee that all of this will be enough to counterbalance the power of big money in elections. But we can hope that bottom-up political activism will light a fire underneath the complacent rump of Congress. Increased national dialogue, successful local and state initiatives, and a proliferation of academic criticism of current law and policy all generate real political pressure.
Signs of hope
Disclosure laws are not out of reach in the coming years, and increased participation in local elections, subsidized by voucher systems, may usher in increased voter turnout for national elections. Higher turnout has been shown to heavily favor one of the two major political parties. Hint: It’s not the Republicans.
Liberals should take note of the recent special election in Pennsylvania’s 18th District. Outside donations for the Republican candidate, Rick Saccone, were more than five times larger than for the Democrat, Conor Lamb. Yet Lamb pulled off the upset, showing money isn’t everything. He drew strength from a well-mobilized, engaged electorate.
Such vigor can be stimulated in elections across the country — particularly if we provide concrete, monetary means for voters to participate in the selection of their representatives.
Rather than continuing to rail against Citizens United, reformers should pursue strategies that increase democratic participation and encourage voter turnout.
For a decade, the United States backed an international body investigating corruption in Guatemala. Now experts are asking why the White House is silent as the country’s president, Jimmy Morales, wages war on the panel
In May, Guatemala became the first country in the world to follow in the Trump administration’s footsteps and move its Israeli embassy from Tel Aviv to Jerusalem. The White House promised at the time that it would reward the small Latin American country for its decision. Could that reward come in the form of turning a blind eye to attacks by Guatemala’s president on an international anti-corruption body?
Experts and former U.S. officials see a possible link between Guatemala’s decision to move the embassy and the Trump administration’s change of policy with regards to the International Commission Against Impunity in Guatemala (CICIG), a U.N.-supported panel that has uncovered vast corruption scandals in the country.
The administration, according to experts on U.S. policy in Latin America, is looking the other way while Guatemalan President Jimmy Morales tries to dismantle CICIG by sending military forces to its local office and barring the panel’s head, Iván Velásquez, from entering the country.
“The American position on this issue has shifted dramatically – not just in comparison to how the Bush and Obama administrations treated it, but also in comparison to how the Trump administration treated it just last summer,” said Benjamin Gedan, an expert on Latin America at the Wilson Center in Washington.
Gedan said he has no direct knowledge of a connection between Guatemala’s policy on Jerusalem and Trump’s policy on the Latin American state. He notes, though, that “this seems like a possible explanation. The change in American policy on CICIG makes no sense.”
The Guatemalan government has accused CICIG of being a “super-national entity that dictates to governments how to exercise their duties” on behalf of the UN. An article in The Economist called this accusation “flimsy”... Mac Margolis, a columnist on Latin America for Bloomberg News, wrote last week that a “quid pro quo” over the embassy issue could potentially explain the administration’s policy shift on CICIG.He mentioned another possible explanation: That, unlike other Latin American countries, Guatemala has not cozied up to China and continues to hold diplomatic relations with Taiwan.CICIG was established in 2007 with the strong backing of the George W. Bush administration. “Fighting corruption in politics is an urgent need in Guatemala and elsewhere in Latin America,” said Gedan, who worked on Latin America policy in the Obama White House. Over the past decade, he added, the panel has contributed to the downfall of a number of senior politicians in Guatemala, including the country’s previous president, Otto Pérez Molina. He is currently in detention and awaits trial on corruption charges.
Molina was replaced in 2016 by Morales, who was a comedian prior to entering politics. Over the past year, Morales has been showing an increasing level of hostility toward CICIG, probably as a result of an investigation regarding his campaign finances. The panel is looking into allegations that Morales’ party received more than $1 million of illegal campaign donations in the 2015 election, according to a report last week in The Washington Post.
Morales’ attacks on CICIG first surfaced in the summer of 2017 when he tried to expel Velásquez from the country and get him replaced. The Trump administration reacted quickly and forcefully, signaling to Morales that the United States had the anti-corruption body’s back.
- The U.S. ambassador in Guatemala posed for a photograph with a sign proclaiming “I love CICIG.”
- Nikki Haley, the U.S. ambassador to the UN, also expressed support for the panel’s work, and Morales eventually backed down.
This was not the first time a U.S. administration thwarted attempts by the Guatemalan government to weaken CICIG. Under the Obama administration, Vice President Joe Biden at one point threatened to cancel all U.S. aid to Guatemala, in light of attempts by the country’s previous president, Molina, to shut down the panel’s investigations.
“When you compare those past responses to how the Trump administration is reacting to Morales’ current attack on CICIG, there truly is no good explanation for what they are doing,” said Gedan.
Morales announced last week he was shutting down the panel and barring Velásquez from entering Guatemala. He also sent military forces, driving U.S.-manufactured vehicles, to CICIG’s offices. While the U.S. Embassy in Guatemala released a statement expressing support for CICIG’s work, the statement did not include direct criticism of Morales’ actions.
On September 6, at the height of Morales’ attacks on CICIG, U.S. Secretary of State Mike Pompeo spoke to the Guatemalan president over the phone. The State Department readout of the conversationcontained no criticism of Morales’ actions. Instead, it opened by stating that Pompeo “reiterated the United States’ support for Guatemalan sovereignty.”
According to the readout, Pompeo “expressed continued support of the United States for a reformed CICIG and committed to continue working with Guatemala on implementing the reforms in the coming year.”
A former senior U.S. official who worked on Latin America policy told Haaretz that this statement was “a huge achievement” for Morales in his fight against CICIG.
The former official, speaking on condition of anonymity, said that “Pompeo basically told Morales that America had his back, and that CICIG is viewed as a problematic organization that needs to go through reforms. The fact that the readout included no mention of Morales’ aggressive steps against CICIG is a sad capitulation to violence, and it sends a message that has already been received by other leaders in the region,” the official added.
“Since 2007, across the Bush and Obama administrations, and in both the Senate and the House of Representatives, a bipartisan commitment to CICIG has been a fundamental element of our foreign policy,” the legislators wrote in their letter. They also mentioned Morales’ use of U.S.-manufactured military vehicles against CICIG, writing that “such a gesture is unacceptable and does not comply with the purpose for which the United States donated the vehicles.”
It should be noted that all four lawmakers are considered strong supporters of Israel. This could indicate that, on the congressional level at least, Guatemala’s decision on Jerusalem has not affected, so far, their response to Morales’ attacks on his own investigators.
Flight on Adelson’s private jet
Morales may be losing popularity on Capitol Hill, but there are other places where he still enjoys support and appreciation. One such place is Jerusalem.
Over the weekend, Prime Minister Benjamin Netanyahu released a statement congratulating Guatemala on its Independence Day, personally applauding Morales for his leadership.
Morales is also popular in pro-Israel circles in the United States. Last May, for example, when Morales visited Israel to celebrate the relocation of his country’s embassy to Jerusalem, gambling tycoon and Republican megadonor Sheldon Adelson let Guatemala’s government use his personal Boeing 767 aircraft for the journey. The plane carried government officials and other guests, according to a statement by Guatemala’s foreign minister.
Morales also spoke in March at the annual conference of the AIPAC pro-Israeli lobby in Washington, where he received a warm welcome from thousands of participants. An AIPAC official told Haaretz that it was not doing anything to help Morales push back against the current criticism he is facing in Congress. “We are not involved,” the official said.
The Israeli Embassy in Washington also said it was not aiding Guatemala on Capitol Hill or with the Trump administration.
But perhaps Morales doesn’t need any help. Hector Silva Avalos, a journalist and former diplomat who has written extensively on corruption in Latin America, wrote in InSight Crime last week that “mixed messages from Washington have left the door open for Morales to strengthen his fight against the institutions investigating him for alleged illicit campaign financing.”
Avalos added that “with several Trump administration officials in his corner, Jimmy Morales has the advantage in his battle against CICIG.”
Current and former American diplomats are expressing disgust and horror over the White House’s willingness to entertain permitting Russian officials to question a prominent former U.S. ambassador.
.. “It’s beyond disgraceful. It’s fundamentally ignorant with regard to how we conduct diplomacy or what that means. It really puts in jeopardy the professional independence of diplomats anywhere in the world, if the consequence of their actions is going to be potentially being turned over to a foreign government,”
.. During President Trump’s press conference with Vladimir Putin in Helsinki, Putin pivoted a question about extraditing the 12 Russian intelligence officers whom Robert Mueller has indicted into a quid pro quo for going after longtime betes noire currently beyond his reach.
.. Putin singled out Bill Browder, whose exposure of widespread Russian tax fraud led to the passage of a U.S. human rights sanctions law Putin hates. Standing next to Trump, the Russian president accused Browder of masterminding an illegal campaign contribution to Hillary Clinton and alleging vaguely that he had “solid reason to believe that some intelligence officers guided these transactions.” Should Trump permit the Russians to question people around Browder, Putin hinted, he will let Mueller’s people be “present at questioning” of the intelligence officers... On Wednesday, Russian prosecutors escalated the stakes. The prosecutor-general’s office said it wanted to interview Michael McFaul, the former U.S. ambassador to Russia, another Putin bete noire. McFaul—the Obama-era ambassador to Moscow—replied on Twitter that the Russians know well that he wasn’t even in Russia during the relevant time frame for any case against Browder... Sarah Huckabee Sanders declined to rule out permitting the Russians to question McFaul. Sanders said that there had been “some conversation” in Helsinki about the issue, though Trump made no “commitment.”.. Heather Nauert called the Russian request for McFaul “absolutely absurd”—which was closer in line with how former U.S. diplomats viewed Putin’s gambit.“If the U.S. would make a former diplomat avail for questioning by a foreign government without evidence of wrongdoing, then that would be quite horrifying,” said Ron Neumann,.. Susan Rice, the former U.S. ambassador to the United Nations and Barack Obama’s national security adviser, tweeted that the lack of commitment to protecting McFaul was “beyond outrageous... If the White House cannot defend and protect our diplomats, like our service members, they are serving a hostile foreign power not the American people.”.. “To even hint that there’s some element of credibility to Russian disruptions and distractions puts a bullseye on the back of any diplomat and invites authoritarian regimes to bully and threaten American public servants for the crime of doing their job.. Ned Price, a former CIA analyst and spokesman for the Obama National Security Council, said Sanders’ comments made Trump look “even weaker” than during Trump’s Monday press conference with Putin. “Trump has always been all too eager to cave to Putin, but, as far as we know, it’d been largely in the abstract. He sells out our intelligence community, attacks NATO, shelves our commitment to human rights. But Putin now has specific demands in the form of human beings—one of them formerly our designated representative to Russia,” Price said... “By failing to reject the idea out of hand – immediately and forcefully – Trump signaled that absolutely nothing is off limits when it comes to Putin. And just as shocking, he’s willing to play Putin’s brand of ball, in which the world is purely transactional and lives are expendable.”.. The current U.S. diplomat said the openness to turning over McFaul capped off a shocking week for U.S. geopolitics... “The president has first and foremost his interests at the top of his mind, as opposed to the government’s. That’s very clear over the past week and a half, between shitting on our NATO allies and kissing Putin’s ass,” the diplomat said. “He cares more about himself than the nation and any of us who serve it.”The diplomat continued: “Either he’s compromised by Putin or he’s a pussy, in which case he should grab himself.”