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Thursday, February 18, 2010

Most Americans Disagree with the Citizens United Decision -- should we care?

A new Washington Post-ABC News poll reports that around 80% of Americans disapprove of the Supreme Court's decision in Citizens United.

It is unclear to me, from reading the reports of the poll, whether Americans disapprove of unlimited campaign contributions by corporations, or whether they believe that the Supreme Court got it wrong as a legal matter.  But my suspicion is that it is the former.

In that case, should we care?  Assume, purely for the sake of argument, that the Supreme Court got it right as a matter of First Amendment jurisprudence.  What, then, should we make of American's opinions?  One option is to ignore this altogether.  Constitutional law isn't a popularity contest, and perhaps Americans are just seeing a less desirable manifestation of the freedom of speech.

Another option is to consider how public opinion should influence the congressional or political response.  Two broad solutions have been proposed:  the first is a new statute that drafters claim "would pass constitutional muster" which is an attempt to redefine limits on campaign contributions.  The second is to try and pass a constitutional amendment that would ban campaign contributions by corporations.

What Americans think about why the Supreme Court went wrong, and not just the fact that they got it wrong should inform how either of these solutions are crafted, and which of the two solutions it is best to pursue.  Constitutional amendments are daunting, scary processes, but perhaps this level of bipartisan support indicates are real possibility for success.  On the other hand, a federal statute that either does not pass constitutional muster and/or does not really address the concerns that Americans are addressing does not seem like a particularly strong response.  But it is a response at all, and the concern is that ineffective congressional action will be mistaken for a "strong" response that "stands up" to the Supreme Court.

Posted by Robin Effron on February 18, 2010 at 03:23 PM in Constitutional thoughts, Current Affairs | Permalink


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I'm not sure that poll accurately reflects what the case actually said. The poll asked: "[D]o you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections?" This is not what the Supreme Court held. This completely misses the distinction between direct campaign contributions and indirect speech about a candidate. I'm not sure the public understands this distinction and the poll doesn't make this clear. See also http://volokh.com/2010/01/29/colbert-in-2012/ (discussing, albeit in jest, Stephen Colbert's failure to notice this distinction).

I apologize that this comment is completely unrelated to the point of the post, but I think the question that was asked was worth quoting because I'm not sure the poll results are really an accurate reflection of public opinion. The post could also be titled "Most Americans Don't Understand the Citizens United Decision -- should we care?

Posted by: ohiolawdog | Feb 18, 2010 9:50:02 PM

This does not sound much different (other than the public not understanding what the Court actually held) from what we saw from 1989-93, in the wake of Texas v. Johnson. Congress made a "strong" response, which the Court struck down in Eichmann. Then there was all sorts of noise about constitutional amendments, which never went anywhere. It is true there is bipartisan support for these proposals (unlike flag-desecration amendments). But in the end, I doubt this movement goes anywhere, either. This seems so narrow and targeted for a constitutional amendment. The passage of time will cool passions on the issue (unlike passions over flag burning). And that's before the free-speech community brings out the always-effective "Don't tinker with the First Amendment" arguments.

Posted by: Howard Wasserman | Feb 18, 2010 11:19:10 PM

"unlimited campaign contributions by corporations"

Is this how you're characterizing the decision? That's not what the court held, as the case had nothing to do with contributions by corporations.

Perhaps a more appropriate title should be "Even Law Professors Misunderstand the Citizens United Holding--Should We Care?"

Posted by: p.d. | Feb 21, 2010 10:27:35 AM

Hi, P.D.

Thanks for your comment. Just to clarify, my point is that I am unclear whether Americans disapprove of unlimited campaign contributions (a normative proposition) *or* whether they believe that the legal holding of the case was wrong (a statement about the outcome of Citizens United itself). As you point out, it is precisely the case that these two propositions *are not* identical.

Ohiolawdog helpfully pointed out, and I should have been more explicit about in the initial post, the question asked of Americans was about "unlimited campaign contributions" and not a direct restatement of the case itself.

Posted by: Robin Effron | Feb 21, 2010 10:34:41 AM

People interested in campaign finance reform and worried about the corrupting effects of money in politics probably should shift their attention from the kind of direct regulation involved in McCain-Feingold to other methods. The most promising, I think, is one proposed many years ago by our colleague Victor Brudney, who saw the problem from the perspective of a specialist in corporate law. Professor Brudney argued that it was well within the ordinary scope of the law of corporations for states (and possibly Congress) to impose requirements of shareholder approval for specific categories of corporate spending. He suggested that states and mcitp practice tests Congress, to the extent that it has the power to do so, could require that corporate expenditures on campaigns gain shareholder approval. Requiring shareholders to approve a general power in the corporation to spend money on campaigns probably wouldn't accomplish much. Requiring them to approve specific expenditures—in advance—would, probably to the point of making such expenditures impossible for large general-purpose corporations. (It probably wouldn't affect small corporations or ideological ones like Citizens United much, which is an attractive feature of the proposal.) Or, you could require that some supermajority of shareholders approve a general power to spend money on campaigns -- say, two-thirds or three-quarters -- and treat spending in the absence of such approval as ultra vires the corporation. As with all reform proposals, the details matter. But, I think, the decision in Citizens United should spur the kind of creative thinking about campaign finance reform that Professor Brudney's proposals represent.

Posted by: donaldjeo | May 7, 2010 8:10:00 AM

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