Show Me the Money: Public Access and Accountability After Citizens United

IntroductionOn January 27, 2010, a week after the U.S. Supreme Court decided Citizens United v. FEC,1 President Barack Obama voiced his disapproval of the decision in his State of the Union address: "[L]ast week, the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests . . . to spend without limit in our elections."2 As the cameras turned to Justice Samuel Alito, who joined in the majority opinion, he appeared to utter the words "not true" under his breath.3 A frenzy of outrage in the national media ensued: conservatives objected to the president targeting the judicial branch in a political forum, while liberals complained that Justice Alito should not have joined the political fray.4Public reaction to the decision was perhaps less dramatic but no less divided.5 Senator Patrick Leahy of Vermont argued that Citizens United "turns the idea of government of, by and for the people on its head . . . ."6 Professor Richard Hasen assailed what he characterized as Chief Justice Roberts's broken promise to "call balls and strikes," and said the decision "opened up our political system to a money free-forall." 7 Former FEC Chairman Bradley Smith took the opposite tack, applauding the decision as a guarantee against state attempts to ban electoral advocacy books.8 And Republican Senator Mitch McConnell echoed Smith's conclusion, saying the decision ended the suppression of speech.9 Other political leaders, journalists, and academics echoed these divided sentiments.10Sweeping declarations like these pervade the campaign finance discourse.11 But they are nothing new: in 1894, for example, Elihu Root, then an influential lawyer and later U.S. Secretary of State, called corporate influence in politics "a constantly growing evil."12 In 1957, the U.S. Supreme Court in United States v. United Automobile Workers approved the assessment of two historians that the power of corporate wealth "threatened to undermine the political integrity of the Republic." 13 Foreshadowing the next several decades of debate, the dissent in that case accused the majority of "abolish[ing] First Amendment rights on a wholesale basis."14These arguments exemplify the bitter divisions surrounding campaign finance regulation.15 Critics denounce campaign finance laws as barriers to the free exchange of ideas, akin to trade restrictions.16 In their view, the government should not be trusted, nor did the framers intend it to be trusted, to decide who can and cannot speak.17 Proponents, in contrast, focus on the particular dangers inherent in allowing unlimited corporate wealth to dominate the electoral process: the advantages corporations enjoy in amassing capital;18 the risk of corporate money corrupting, or at least unduly influencing, the political process; 19 and the marginalization of individual voters.20Notwithstanding public consternation over the holding in Citizens United that corporations enjoy First Amendment protection commensurate with individuals,21 there is ample reason to doubt the decision's practical significance.22 Judicial constructions of federal statutes limiting corporate spending on elections have constrained the FEC's power to control the flow of money into elections since the Supreme Court's 1976 decision in Buckley v. Valeo.23 Moreover, Citizens United struck down a limited prohibition on corporate-funded ads, which had only been in operation since 2002.24 Although the decision's doctrinal commands will bear significance for as long as it remains binding precedent, its limited practical effect should caution against overstated outrage.25This Note contextualizes the recent shift in campaign finance jurisprudence in light of the practical experience of the last four decades of political spending, and builds on reform-minded scholarship by proposing a voter information-based disclosure regime.26 By way of background, Part I presents an overview of federal laws governing corporate electoral spending, beginning with a summary of the decision in Citizens United and then turning to the development of campaign finance laws from around the turn of the century. …