by Matthew Rothschild, Executive Director
October 22, 2015
As Wisconsin Republicans try to rip to shreds any meaningful limits on campaign contributions and any sensible rules on the disclosure of dark money, they are claiming merely to be faithful champions of the First Amendment. And they cling to the 2010 Citizens United decision as their security blanket.
But they flagrantly misread Citizens United in three crucial ways.
First, nowhere in Citizens United does it say that candidates can coordinate with so-called outside or independent groups. In fact, the entire distinction in Citizens United (and in the landmark 1976 case, Buckley v. Valeo) between “independent expenditures” and direct campaign contributions rests on precisely the fact that there is no coordination.
“By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate,” the Court noted in Citizens United. It maintained this distinction on the grounds that “independent expenditures,” because they are not coordinated with the candidate, do not pose a significant problem of quid pro quo corruption.
In Citizens United, the justices quoted approvingly from the Buckley decision:
“The absence of prearrangement and coordination... alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”
By extension, then, if “independent” expenditures were coordinated with the candidate, as the Wisconsin Republicans would now allow, then the danger of quid pro quo corruption is intolerable.
Second, far from limiting disclosure of expenditures, the Supreme Court in Citizens United went out of its way to endorse disclosure.
It said: “Disclosure is a less restrictive alternative to more comprehensive regulations of speech.”
It added: “The public has an interest in knowing who is speaking about a candidate shortly before an election.”
It also said: “ Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.
And it saw disclosure as a way to mitigate corruption:
“Prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”
Third, in the Citizens United case, the Supreme Court went out of its way not to limit disclosure to express advocacy or its functional equivalent, as the plaintiffs had urged it to do: “We reject [the] contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy,” the Court ruled.
So when Wisconsin Republicans cite Citizens United and the First Amendment as a justification for allowing unlimited expenditures to “independent” groups that are coordinating with candidates, they are just plain wrong.