On the eve of the one year anniversary of the Supreme Court’s controversial decision in Citizens United v. Federal Election Commission, CJR’s Liz Cox Barrett spoke with Richard L. Hasen, a visiting professor at University of California Irvine School of Law and an expert in election law and campaign finance regulations, about Citizens United, its effect on the 2010 midterm elections, how the press fared in its coverage of it all, and what reporters should focus on now and in the run-up to 2012. This is an edited transcript of that conversation.
What exactly did the Citizens United v. FEC decision allow? Can you summarize it?
The Supreme Court held that it violates the First Amendment of U.S. Constitution to limit the independent spending of corporations and presumably labor unions in candidate elections. The Court also upheld broad disclosure rules, and said nothing about the constitutionality of existing limits on direct contributions from corporations or unions to candidates.
On your blog, electionlawblog, you recently flagged a CNN segment in which the Citizens United decision was mischaracterized. Is this a common problem, in your experience? The press, the public, misperceiving or miscommunicating the fundamentals of the decision?
Campaign finance tends to be a very technical area, and both the press and the public are often confused by the [Citizens United] ruling. Sometimes I think people use shorthand to describe what’s going on and it’s not necessarily precise.
Of course there was a great controversy over what President Obama said at the [2010] State of the Union [“Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections”] to which Justice Alito mouthed, “Not true.” Some people said even the president mischaracterized the decision.
Did he?
I think he did to the extent he held that foreign corporations could engage in election spending. Citizens United left that open for another day, noting there’s an existing provision of federal law that bars such spending.
What, in effect, did the decision do, as seen over the last year? And how do you think the press has fared reporting on that? Has anything been over- or under-emphasized?
The jury is still out on the effects of Citizens United on the electoral process. Certainly we’re seeing more corporate money being used and labor union money being used to influence federal elections, but even before Citizens United there were ways for corporations to do that. Scholars are still trying to disentangle a number of things. For example, the 2010 midterm elections were closely contested. Any time elections are closely contested we’d expect more money to pour into the process, so it’s hard to say whether Citizens United directly or indirectly contributed to the skyrocketing cost of the 2010 election. For some in the press, there’s been a tendency to attribute the rise in spending to the case. And it is certainly more complicated than that.
In addition, we have seen a shift away from full disclosure of the contributions funding spending in the 2010 election. And I think journalists often attribute that shift directly to Citizens United whereas it’s actually much more indirect. That is, in Citizens United, the Court upheld disclosure rules. It was only because of actions at the D.C. circuit level and the Federal Election Commission, combined with the inadequacy of IRS rules, which led to a situation where we have far less disclosure than we’ve had in the past. I summarized this in a Slate piece in October. The idea that Citizens United endorsed the concept of secret corporate money is incorrect.
Looking back, how has the press done, in your view, covering the post-Citizens United landscape? Anything stand out to you, for the good or the bad?
The greatest positive role the press has played in terms of its coverage of campaign finance issues in 2010 was to ferret out these now-secret contributions. I point especially to a series of reports in the New York Times that were very educational in teaching us how easy it is for corporate spenders and others to hide behind innocuous-sounding groups like Americans for Job Security or Coalition to Protect Seniors. I mentioned these Times pieces in my Slate piece. [CJR, too, has praised the Times‘s work and did a Q&A in October with one of the investigative reporters behind the effort, Mike McIntire]. That was something the press did well.
Sometimes covering election law issues is like watching paint dry. It is, I think, a challenge to make these issues interesting and accessible for a general reader. In this election there was just so much money and so much secrecy, so the stories were probably of broader interest. I cannot recall a case since Bush v. Gore in 2000 when the public has shown such interest in a Supreme Court case. That helps to make the case for covering the impact of Citizens United.
If you were a reporter on the campaign finance beat, what stories would you pursue both right now and looking toward 2012?
One issue is the parts and makeup of groups that are taking advantage of the new campaign finance environment. In 2010 it was mostly Republican-leaning groups such as American Crossroads and Crossroads GPS that took advantage of the ability to use corporate money and to apply secrecy to contributions. It appears the Obama campaign team is signaling that this would be okay on the Democratic side as well. So it will be interesting to see the efforts made in that arena.
One area that has been tremendously under-covered has been the complete break down of the enforcement powers of the Federal Election Commission. There was a good story in the New York Times and one at TPM Muckraker but [not much] apart from that. The fact that the three Republican commissioners in lockstep have taken a de-regulatory position well beyond that of the Supreme Court is pretty startling, and troubling to someone like me who believes that campaign finance laws on the book should be enforced strongly.
One example is the three Republican commissioners took a position on disclosure of contributions funding election-related ads that made it child’s play to avoid disclosure except in extremely narrow circumstances.
The other thing I’d point out is that President Obama’s 2008 campaign was able to raise $745 million under the old campaign finance rules. It’ll be interesting to see how he’ll fare under the new rules. It would not surprise me to see both the Democratic and Republican presidential nominees raising over a billion dollars each. The question will be how this election differs from other elections in terms of, for example, the interests of small donors. [In 2008] Obama was remarkably successful at attracting small contributions from a large number of contributors. Whether or not small contributors will be discouraged or motivated to give in a post-Citizens United atmosphere is an interesting question.
Liz Cox Barrett is a writer at CJR.