A Belated Comment on Bauer’s Critique of Justice Kennedy

The Citizens United case is submitted, and, yet, the editorial pages and others continue to opine.  Perhaps, then, there is time to consider an earlier, erroneous, critique by Bob Bauer.

More than a month ago, Mr. Bauer wrote that Justice Kennedy is “mistake[n]” to rely on the contribution/expenditure distinction in adjudicating the constitutionality of source restrictions.  Because the “corporate spending prohibition is a source restriction,” says Bauer, “the contribution/expenditure distinction is misapplied in this context.  Source restrictions call instead for close attention to the requirements of narrow tailoring.”

In short, Bauer suggests that precedent prevents Kennedy and the Court from rejecting the anti-distortion rationale for independent expenditures, even as Solicitor General Elena Kagan has jettisoned it, and even as Justice Kennedy himself has never adopted it.

Many have suggested there is no easy line to be drawn in repealing Austin, and no workable standard to be promulgated if Austin is repealed.  Some who fear participation by profit-seeking associations might draw the line at the non-profit corporation.  But the Court already has come down on both sides of this fuzzy line, striking the expenditure ban for non-profits in 1986 and upholding it in 1990.  The Court also has upheld corporate solicitation restrictions both for non-profit and for-profit corporations.  Others, like, Justice Stevens, acting as much on feel as precedent, might draw the line at the 501(c)(4) or 527 corporation (note, this line leaves media in the cold). Bauer is more grudging.  He argues that the most logical line-the line between independent expenditures and contributions-is, as a matter of jurisprudence, unavailable, even if it is workable. 

But this is not true.  The precedent cleaves easily at the independence line, particularly upon study of the Kennedy opinions, and a workable standard will remain with Austin‘s repeal.

Bauer’s “mistake” is to suggest that Justice Kennedy must review the tailoring of the cart before inspecting the horse that would pull it.  The anti-distortion “interest,” however, is not compelling, and no amount of tailoring ought to save a ban predicated solely upon it.  After Citizens United, all that should remain of the interest is the question, to be posed in a future case, of whether the anti-distortion rationale should continue to justify contribution bans over the contribution limits, already justified to prevent quid pro quo corruption in Buckley.

The interest in preventing “corruption” is not a talisman.  The government is obliged to say what causes the corruption, and each component of Austin‘s anti-distortion interest falls short of the mark.  State-conferred benefits, like immense aggregations of wealth, are not confined to corporations, and their conferral cannot, in any case, be conditioned on the renunciation of a right.  “Distortion” presumes a status quo ante to be preserved, despite debate, or an illegitimate input in the crucible of candidate consideration by some of our law abiding persons.  But in the American political system, debate, that precedes a vote, determines what success a candidate will enjoy, on the belief that the individual mind (healthy and mature) is autonomous and capable of finding truth among folly, no matter the number of speakers seeking its attention.  Corporations are persons, associations of individuals, and subject to our laws.  Their input in our process is legitimate, no less than any other.  Holdings to contrary are borne of Progressive-Era instrumentalism.  Indeed, nothing is so corrosive or distorting as the havoc Congress would play with our speech laws if permitted.

Austin‘s interest is a gussied-up egalitarianism.  New evidence confirms the obvious, provided by Professor Hasen just days ago: In drafting Austin‘s majority opinion, Justice Thurgood Marshall cloaked egalitarianism in the language of anti-corruption.  That the interest won’t support the corporate expenditure ban was not lost on the Solicitor General, who, rather than defend the anti-distortion interest that comprises the precedent she was defending, chose instead to lean on minority-shareholder-protection interests (better solved by corporate governance than campaign finance) and a novel argument aimed more at striking Buckley than preserving Austin; namely that in a 21st century, (wait for it…) independent speech is just another kind of quid pro quo.

What’s more, there is no unifying principle illuminated by noting, as Bauer does, that the political activity of federal contractors, foreign nationals, corporations, and unions were each banned by Congress.  The interests for banning each are different, and the congressional tailoring, as Bauer suggests should be the Court’s focus, cannot precede the defining of each interest and the determination of whether the interest is compelling.

Bauer says, rightly, that the anti-distortion interest “inhabits familiar territory established by precedent.”  But the precedent that predates Austin supports bans on corporate and union contributions, not expenditures.  While the Court has employed some variation of anti-distortion language since at least the time of CIO (1948) as-applied to direct and indirect contributions, the Court painstakingly has avoided-from Auto Workers in 1957 through MCFL  in 1986-determining that the anti-distortion interest was sufficient to ban independent expenditures.

Indeed, Justice Kennedy makes no “mistake” at all.  Kennedy has upheld corporate contribution bans, and against non-profit corporations.  (Beaumont).  But Kennedy has done so while rejecting the Austin rationale.  Doubters should read his concurrence in Beaumont.  Therefore, the meaningful line for Kennedy, and his consistency here is remarkable, is not drawn at the border of for-profit and not-for-profit corporations.  In rejecting the anti-distortion rationale repeatedly, what remains for Kennedy and other Justices of the Court is the line between independent expenditures and contributions.

Perhaps it is the Article III case or controversy doctrine that creates the dissonance Bauer is detecting.  Whether the discredited and government-abandoned anti-distortion rationale will support contribution bans after Citizens United is not now before the Court.  It may be that the demise of the anti-distortion rationale in Citizens United may signal, for some future case, the demise of the corporate contribution ban, to be replaced by the corporate contribution limit, including biennial aggregate limits to prevent circumvention, already upheld for all entities in Buckley.

It would seem that the anti-distortion interest no better justifies contribution bans over contribution limits than it justifies bans on independent expenditures.  And the less rigorous review that the Court gives to contribution restrictions (Shrink) may later lead to the conclusion that corporate contribution limits prevent quid pro quo corruption and better protect associational rights than do bans.  Nonetheless, there is another rationale that may support corporate contribution bans: preventing the circumvention of other valid contribution limits.  This is an interest inapplicable to independent expenditures, and may be the basis for Kennedy’s vote to uphold a ban on contributions in Beaumont, though he said there that he might reconsider the issue entirely if presented with it directly.

In any event, the Court must leave for another day the constitutionality of corporate contribution bans versus limits, and affirm now that independent speakers deserve constitutional protection.  Should the Court do so, it will be more on the lack of a compelling interest in banning corporate or union independent expenditures than on the question of tailoring.

The independence canon has proven workable since at least the time of Buckley.  Repealing Austin would restore press communications to a surer constitutional footing than they currently enjoy under statutory exemptions subject to the whim of Congress.  Austin‘s repeal would accord the notions that corporations, as persons, enjoy speech rights, and that the rights of the press are no greater than those of other persons.

Justice Kennedy has marked a clear path to rejecting Austin, and that path follows the independence line.  Let us hope that he and his clerks don’t lose sight of that line in the flurry of press editorials and erroneous critiques.

The Center for Competitive Politics is now the Institute for Free Speech.