Citizens United and the Orphaned Antidistortion Rationale
Richard L. Hasen, Citizens United and the Orphaned Antidistortion Rationale, 27 Ga. St. U. L. Rev. 989 (2011).
This brief Essay, written for a symposium in the Georgia State Law Review, considers liberals’ abandonment in the Citizens United case of the “antidistortion” interest for corporate campaign spending limits. Soon after his retirement, Supreme Court Justice John Paul Stevens gave an interview to the CBS television program 60 Minutes in which he defended corporate spending limits on antidistortion grounds. Reacting to the Stevens interview, the president of Citizens United lauded the Court’s decision on grounds that it would level the playing field. How strange that both the Citizens United prime dissenter and plaintiff described the decision in terms of antidistortion/political equality effects. The irony in this debate is that Mr. Bossie’s group argued before the Supreme Court that the First Amendment barred taking political equality concerns into account in fashioning campaign finance rules, and Justice Stevens’ dissent did its best to avoid acknowledging that it was defending corporate spending limits, in part, on political equality grounds. Justice Stevens’ failure to expressly defend corporate spending limits on political equality grounds came after the government had abandoned the rationale in the Supreme Court.
This Essay argues that the antidistortion argument did not deserve to be orphaned, and remains a key animating principle in thinking about the desirability of campaign finance laws. Part I explains how the antidistortion argument became an orphan in Citizens United, laying the blame with the Solicitor General’s office and with Justice Stevens muddled Citizens United dissent. Part II explains the cost of this orphaning for the future of campaign finance and related laws: keeping the political equality rationale in the closet will make it harder to get legislative and judicial change in the campaign finance arena going forward, and it prevents a full and honest debate about the desirability and cost of campaign finance laws justified on political equality grounds.