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An Attack on Citizens United, Through the Back Door

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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A group of high-profile legal minds wants the Supreme Court to eliminate super-PACs, the advocacy groups that can raise and spend unlimited amounts of cash to praise and attack political candidates.

But instead of asking the court to overturn the 2010 Supreme Court case that lifted many restraints on political spending, Citizens United v. Federal Elections Commission, they plan to ask the justices to overturn a lower court decision that interpreted Citizens United to open the door to the super-PACs.

QuickTake U.S. Campaign Finance

The strategy is worth pursuing. If President Barack Obama's nominee Merrick Garland or another Democratic choice is on the Supreme Court when the case reaches it, there could be five votes for the approach. It’s even conceivable, just barely, that the author of Citizens United, Justice Anthony Kennedy, would join the vote.

If it fails, however, the approach could foreclose the best hope for reversing the effects of Citizens United. The question therefore is timing – and whether the effort is coming too soon.

The bipartisan legal team filed a complaint with the Federal Election Commission last Thursday on behalf of several members of Congress and congressional candidates, challenging super-PAC expenditures. Under current law, the complaint can’t succeed. The expectation is that the FEC will deny the complaint, as will the U.S. Court of Appeals for the D.C. Circuit. The table would then be set for asking the Supreme Court to consider the case.

The specific legal target is the most important appellate case you’ve never heard of: SpeechNow.org v. Federal Election Commission, decided by the D.C. Circuit in 2010. The issue in the SpeechNow case was whether federal limits on individual contributions to tax-exempt political action committees were permissible in the wake of the Citizens United precedent.

The Citizens United decision had given corporations and unions a constitutional free-speech right to political spending, leaving scant room for permissible restrictions. In effect, the only basis left was if the restrictions were needed to combat corruption or its appearance.

Logically speaking, this was a good rationale for limiting individual contributions to PACs: If a major donor contributes millions of dollars to a PAC, it seems reasonable enough to think that that gives rise to the appearance of corruption insofar as the candidate would then owe the donor special consideration.

But the D.C. Circuit observed that in the Citizens United case, the Supreme Court had held that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The expenditures at issue in the SpeechNow case were independent in the sense that they weren’t contributions to the candidates’ campaigns, but to independent PACs.

Applying the Supreme Court’s logic, the D.C. Circuit held that contribution limits to PACs were therefore unconstitutional. The justices declined to review the decision. And thus was born the super PAC.

Why attack SpeechNow instead of challenging Citizens United directly? The answer is subtle, and it reflects the legal expertise of the group, which includes my senior Harvard Law School colleague Laurence Tribe, the unquestioned master of the dark arts of shaping doctrine through litigation.

One reason is that the justices generally don’t like to overturn precedent without a strong reason -- especially when doing so would look like partisan politics.

In the best-case scenario for the litigants, a court with five Democratic appointees might say that Citizens United was wrong the day it was decided. But if the justices don’t want to go that far, seeking to overturn the SpeechNow case gives them a fig leaf to cover a naked doctrinal reversal.

The way to do so would be to argue that Citizens United shouldn’t be interpreted as holding that, as a matter of immutable constitutional law, independent expenditures can never give rise to the appearance of quid pro quo corruption. Sure, Kennedy’s Citizens United opinion seemed to say so. But constitutional interpretation can change the meaning of precedent.

The best argument for a new interpretation would be to say that the true meaning of Citizens United is only that under specific conditions and factual circumstances, independent expenditures such as those made by a nonprofit corporation like the one in that case don’t give rise to the appearance of corruption. However, under different circumstances -- such as donations by private individuals or for-profit corporations -- the otherwise independent expenditures might create the appearance of corruption.

Reading the Citizens United precedent that way would open the door to regulate super-PACs. It would also make Citizens United a more commonsensical decision.

It was always the worst aspect of the decision that it purported to make a factual finding -- that expenditures that aren't explicitly for candidates don't create the appearance of corruption -- into a legal necessity.

There is a small but appreciable chance that Kennedy, who has recently sided with the court's liberals in cases on gay marriage and affirmative action, might want to distance himself from the Citizens United decision that liberals so hate. There’s minimal chance that he would do so by overturning a 5-to-4 opinion he wrote himself. But he could potentially join a ruling by someone else saying that his opinion had been misinterpreted.

Count on Tribe to have considered this possibility. Since supporting Kennedy’s confirmation, he’s often been in near mind-meld with the justice, most famously in the landmark 1996 gay-rights case Romer v. Evans, in which Kennedy’s opinion adopted the argument from a highly creative brief by Tribe that changed the law of equal protection.

By the time the current case makes its way to the Supreme Court, the court should be at full strength. It better be – because if the justices were to reaffirm the principle of SpeechNow, then Citizens United will be with us for another generation of constitutional law. That would be unfortunate for the law and for the republic.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net