or years, the Supreme Court’s 5-4 decision in Citizens United was depicted by Democrats as the root of all political evil. But now, the core argument embraced by the Court’s conservatives to justify their ruling has taken center stage in the Democratic primary between Hillary Clinton and Bernie Sanders — because Clinton supporters, to defend the huge amount of corporate cash on which their candidate is relying, frequently invoke that very same reasoning.
The crux of the Citizens United ruling was that a legal ban on independent corporate campaign expenditures constituted a limit on political speech without sufficient justification, and thus violated the First Amendment’s free speech guarantee. A primary argument of the Obama Justice Department and Democrats generally in order to uphold that campaign finance law was that corporate expenditures are so corrupting of the political process that limits are justified even if they infringe free speech. In rejecting that view, this was the key argument of Justice Anthony Kennedy, writing for the five-judge conservative majority (emphasis added):
For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.
Does that sound familiar? It should. That key argument of the right-wing justices in Citizens United has now become the key argument of the Clinton campaign and its media supporters to justify her personal and political receipt of millions upon millions of dollars in corporate money: “Expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” — at least when the candidate in question is Hillary Clinton.
Indeed, the Clinton argument actually goes well beyond the Court’s conservatives: In Citizens United, the right-wing justices merely denied the corrupting effect of independent expenditures (i.e., ones not coordinated with the campaign). But Clinton supporters in 2016 are denying the corrupting effect of direct campaign donations by large banks and corporations and, even worse, huge speaking fees paid to an individual politician shortly before and after that person holds massive political power.
Another critical aspect of the right-wing majority argument in Citizens United was that actual corruption requires proof of a “quid pro quo” arrangement: meaning that the politician is paid to vote a certain way (which is, basically, bribery). Prior precedent, said the Citizens United majority, “was limited to quid pro quo corruption,” quoting a prior case as holding that “the hallmark of corruption is the financial quid pro quo: dollars for political favors.”
Does that sound familiar? It should. That, too, has become a core Clinton-supporting argument: Look, if you can’t prove that Hillary changed her vote in exchange for Goldman Sachs speaking fees or JPMorgan Chase donations (and just by the way, Elizabeth Warren believes she can prove that), then you can’t prove that these donations are corrupting. After all, argue Clinton supporters (echoing the Citizens United majority), “the hallmark of corruption is the financial quid pro quo: dollars for political favors.”
Conversely, the once-beloved Citizens United dissent from the Court’s liberals, written by Justice Stevens, was emphatic in its key claim: that there are many other forms of corruption brought about by corporate campaign expenditures beyond such quid pro quo — i.e., bribery — transactions. Their argument was that large amounts of corporate cash are almost inevitably corrupting, and certainly undermine trust in the political system, because of the many different ways (well beyond overt quid pro quos) that corporations convert their expenditures into undue influence and access:
That core argument from the liberal Citizens United dissenters has been the central critique the Sanders campaign and its supporters have used to denounce Clinton’s massive corporate-based campaign (and personal) wealth. Incredibly, to defend their candidate against this critique, Clinton supporters have waged war on the crux of the liberal critique of Citizens United.
Oh no, Clinton supporters insist, the mere fact that a candidate is receiving millions upon millions of dollars — both politically and personally — from Wall Street banks, hedge funds, and large corporations is not remotely suggestive of corruption, and we’re actually offended at the suggestion that it is. They are explicitly channeling Antonin Scalia and Mitch McConnell in defending the integrity of politicians who accept massive corporate money. As campaign finance reformer Zephyr Teachout wrote about a 1999 Supreme Court opinion authored by Scalia that “set the table for Citizens United“: “The Court suggests that using money to influence power through gifts is both inevitable and not troubling” — i.e., the 2016 argument of Clinton supporters.
What’s most amazing about all of this is that Clinton defenders are going even further in defending the integrity of corporate cash expenditures than many defenders of Citizens United did. There were many reluctant defenders of that decision on free speech grounds — such as the ACLU, Eliot Spitzer, various unions, and myself — who argued that the solution to domination of corporate donations was not to vest the government with the power to restrict political speech (the case began when an advocacy group was barred from distributing an anti-Hillary film) but, instead, to institute a system of robust public financing to even the playing field, to disempower corporations by rendering their expenditures unnecessary. But those of us who defended the decision on free speech grounds nonetheless accepted, and indeed vehemently argued, that corporate expenditures are corrupting in the extreme. As I wrote after that decision, “Corporate influence over our political process is easily one of the top sicknesses afflicting our political culture.”
Incredibly, Clinton supporters, to defend their candidate, have resorted to denying what was once a core orthodoxy of Democratic politics: that big corporate donations (let alone being personally enriched by huge Wall Street speaking fees in between stints in public office) are corrupting. In doing so, these Democrats — just as they did when they instantly transformed from opponents to supporters of Guantánamo, drones, and spying once Obama stopped denouncing those things and started doing them — have spent the 2016 campaign vehemently renouncing the crux of the argument in favor of campaign finance reform.