JURIST Guest Columnist Josh Douglas of the University of Kentucky College of Law says that the Supreme Court’s opinion in Citizens United v. FEC has created a doctrine that prevents states from justifying campaign finance laws on anticorruption grounds and forces them to justify them on the grounds of transparency concerns alone, which heavily limits the types of campaign finance laws that will be deemed constitutional…

Today marks the second anniversary of the US Supreme Court’s landmark opinion in Citizens United v. FEC. Coverage of that case continues to abound, with everyone from election law experts to Stephen Colbert weighing in on the merits of the decision. In the midst of this, the US Court of Appeals for the Ninth Circuit recently considered a case involving campaign finance laws in the context of ballot initiatives, in which voters are asked to decide whether to enact certain state laws such as those regarding same-sex marriage. Although no candidates are actually running for office in these elections, the rules regarding the campaigns for ballot measures are similarly complex — and similarly under attack by those who seek to deregulate campaign finance. The Ninth Circuit’s analysis demonstrates the shift in campaign finance law from a focus on rooting out various forms of corruption to simply giving voters information about the money spent on campaigns. This case thus provides a cogent microcosm of the state of campaign finance law two years after the Supreme Court’s groundbreaking decision.

In 2009, Washington voters were asked whether to approve Referendum 71, which would enact Senate Bill 5688, the law that gave registered domestic partners in Washington the same rights as married couples. Though the Washington legislature had passed and the governor had signed Senate Bill 5688, Washington state law allows for citizens to require a referendum before a law is finally enacted. In essence, the referendum was an effort to limit marital rights for same-sex couples. Many groups, such as the plaintiff in this case, Family PAC (an anti-same-sex-marriage political committee affiliated with the Family Policy Institute of Washington), wished to run political ads to convince voters to vote one way or the other on the domestic partner law.

Two Washington laws regulated the ability of groups such as Family PAC to run ads involving the ballot measure. First, the “contribution” limitation prohibited a political committee from accepting donations of more than $5,000 within 21 days of the election. Second, the “disclosure” law required political committees to disclose the name and address of each person contributing more than $25 to the group, as well as the occupation and employer of each person contributing more than $100. Family PAC challenged these laws as unconstitutional, alleging that they infringed its First Amendment right to engage in election advocacy.

The US District Court for the Western District of Washington struck down the contribution limitation and upheld the disclosure requirements, and the Ninth Circuit affirmed. Each issue is emblematic of the legal status of campaign finance regulation in the aftermath of Citizens United.

Contribution Limitation

Washington argued that its contribution limitation within 21 days of the election for ballot measures was constitutional because it served the state’s interest in giving voters information about who contributes to a campaign. It argued that because Washington must mail out ballots 18 days before Election Day (as it mostly conducts its election through mail-in votes), the 21-day limit achieved the state’s goal in ensuring voters knew who was funding ads regarding the election before voting. The Ninth Circuit disagreed, stating that the contribution ban “imposes a significant burden, because it limits contributions during the critical three-week period before the election, when political committees may want to respond to developing events.” Moreover, voters who decide to send in their ballots before Election Day are voluntarily choosing to forego learning any additional information that might come out in the last few days of the campaign.

This may be true: technically, the limitation curtails the ability of political committees such as the Family PAC from spending large sums on a ballot measure campaign right before the election. Further, if the state’s interest is only that of giving voters information, then the law may not be closely drawn enough to achieve that goal.

What this analysis fails to address, however, is the real basis for most contribution limitations: to ward off corruption or the appearance of corruption in the political process. It is hard to fault the state for not raising this argument, as Supreme Court precedent states pretty clearly that there is little opportunity for corruption when it comes to ballot initiatives. But it is somewhat strange given that, from at least the days of Buckley v. Valeo, states have justified contribution limitations by pointing to an anticorruption concern. This demonstrates how the current narrow conception of corruption impacts the way in which states justify, and courts analyze, campaign finance laws.

Two cases, one from 1978 and the other from 1981, precluded the state from making the argument that even political committees focused solely on ballot measures have the potential to corrupt. In First National Bank of Boston v. Bellotti, from 1978, the Court held that the “risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue.” The reasoning is that since no candidates are on the ballot, there are no candidates to corrupt through contributions. Similarly, in 1981 the Court held, in Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, that total contribution limitations on committees supporting ballot referenda are unlawful because the government does not have a valid anticorruption concern with these elections.

These rulings are inconsistent with today’s political realities. As Professor Rick Hasen persuasively argued in a 2005 law review article [PDF], “Candidates and parties may become intimately involved in ballot measure campaigns, and a contribution to a ballot measure campaign may inure — or at least appear to inure — to the benefit of the candidate supporting that measure.” This concern is even more acute in the post-Citizens United world of increased election spending by outside “unaffiliated” organizations. Political committees might spend money on ballot measures that candidates endorse — particularly if the political organization has the imprimatur of the candidate him- or herself — with the expectation that the candidate will support the group’s legislative initiatives once elected. Further, ballot measures on social issues often serve as potent get-out-the-vote drives for one party or another, so campaigning about the ballot proposition can have real-world election effects on candidates who are also on the ballot that year.

Citizens United embellished the cases from 1978 and 1981 by narrowing the definition of “corruption.” In that case, the majority adopted a very crabbed view of corruption, stating that campaign finance restrictions on independent expenditures in candidate elections are valid only if they are tied to rooting out quid pro quo corruption. Of course, if corruption means only quid pro quo arrangements, then it is impossible to corrupt an inanimate ballot initiative that does not hold office and cannot give legislative favors in return for support.

As Justice Stevens argued in his dissenting opinion, however, corruption comes in many forms, including through increased access. The dissent explained that there are “myriad ways in which outside parties may induce an officeholder to confer a legislative benefit in direct response to, or anticipation of, some outlay of money the parties have made or will make on behalf of the officeholder.” One way might be to spend money on a ballot initiative campaign that the candidate cares about deeply or that can help influence the candidate’s supporters to go to the polls, with the expectation that the candidate will grant access or support to the wishes of those who were behind the PAC once elected. Or perhaps a Super PAC — which is technically unaffiliated and uncoordinated with the candidate — will run ads explaining why the candidate’s opponent is wrong on his or her views on the ballot initiative and then urge voters to vote one way or another on the ballot measure, with the tacit message to vote for the candidate as well. To put it more concretely, the concern is that the Family PAC might try to increase turnout among conservative voters who oppose same-sex marriage through ads about the ballot measure and then expect conservative candidates who won in that election to support the Family PAC’s (or its affiliated Family Policy Institute of Washington’s) legislative initiatives. The candidates, for their part, will benefit from the increased turnout stemming from the Family PACs efforts, so they might feel obligated to grant access to the Family PAC or champion its issues for fear that the candidates will not receive that same kind of indirect assistance in a future election.

None of that, however, was even at issue in the case before the Ninth Circuit. The narrow view of corruption has won the day, at least for now, and has precluded states from supporting their laws with a capacious anticorruption rationale. Indeed, just this week the Ninth Circuit again rejected [PDF] Washington’s anticorruption concern when it struck down the state’s contribution limits for recall committees who run ads regarding the recall of a current office holder. The court further explained that “[i]n the context of a recall initiative … the State’s additional, specific interest in preventing corruption can at least in part be addressed through disclosure requirements.”

Disclosure, not anticorruption, has become the main focus. States have been required to shift their declared justifications for campaign finance regulations from rooting out corruption to giving the electorate more information. Indeed, it is telling that in Family PAC Washington argued that its contribution law was tied to an informational interest, not an anticorruption interest. True, precedent would suggest that asserting an anticorruption interest would be a losing argument. But the fact that the state did not even mention any anticorruption rationale in support of its contribution law demonstrates the significance of the narrow view of corruption that the Citizens United majority embraced. Thus, one noticeable implication of Citizens United is that contribution laws must be directly and intimately tied to a certain narrow form of corruption to pass constitutional muster.

Disclosure Requirement

If using anticorruption is an uphill battle for a state in justifying its campaign finance laws, a more sanguine consequence of Citizens United is the sustained vitality of a state’s informational interest.

In Family PAC, the Ninth Circuit upheld Washington’s disclosure requirement on ballot initiative PACs, ruling that the state has an important informational interest in telling voters who is funding ads that support or oppose ballot measures. Citing its previous precedent, the court explained that “[g]iven the complexity of the issues and the unwillingness of much of the electorate to independently study the propriety of individual ballot measures, we think being able to evaluate who is doing the talking is of great importance.”

This holding stems directly from Citizens United, in which the Supreme Court upheld federal disclosure requirements because these laws “give proper weight to different speakers and messages.” The Ninth Circuit further rejected an as-applied challenge, holding that the Family PAC had not produced enough evidence to demonstrate that Washington’s disclosure requirements would produce a chill on political speech or significantly deter contributions. The state’s informational interest was thus sufficiently important, and the disclosure laws substantially achieved the state’s goals in providing information to the electorate.

The court’s analysis shows how Citizens United has come to mean that, although a state will have a harder time justifying specific limitations on campaign spending, it still has the ability to use its informational interest to require those spending money to provide information about themselves and their donors to the electorate. Two years after the decision, one lasting legacy of Citizens United is a shift in how states must justify their campaign finance laws. The Ninth Circuit’s ruling in Family PAC v. McKenna demonstrates that the real battle in many of these cases is whether the state’s law appropriately provides the electorate with information without unduly limiting campaign spending. Rooting out corruption in any nuanced form has become an afterthought.

Joshua Douglas is Assistant Professor of Law at the University of Kentucky College of Law. His research focuses on election law, including the interaction between election processes and the judiciary. Prior to his academic career, Douglas clerked for Judge Edward Prado of the US Court of Appeals for the Fifth Circuit.

Suggested citation: Joshua A. Douglas, Campaign Finance After Two Years of Citizens United, JURIST – Forum, Jan. 21, 2012, http://jurist.org/forum/2012/01/joshua-douglas-citizens-united.php.