In Citizens United – again, I mentioned that one concern arising out of the opinion in Citizens United was the prospect that the Supreme Court would expand the idea of corporate personhood beyond “speech” or advocacy into campaign contributions. Nate Persily, writing at Balkinization, articulates the concern:
The opinion's significance will be greatly magnified, however, by the doubt it might cast on the soft money contribution restrictions of [McCain–Feingold], which ban corporate and union treasury contributions to political parties. My guess is that, in their heart of hearts, five members of the Court want to strike those down as well, even though we are a long way off from that happening. Citizens United could erase many of the distinctions between corporations and other voluntary associations by questioning the special corruption threat ("the corrosive and distorting effects of immense aggregations of wealth amassed through the corporate form") the Court has recognized as flowing from corporate participation in elections. If the special corruption threat posed by corporations and unions is taken away, then it becomes more difficult to justify a ban, as opposed to simply a limit, on their contributions to parties.
Persily is a law professor at Columbia Law School; he is suggesting that Citizens United may well be just a step along the path.
Let’s follow up on that and come back to the raison d'être for campaign finance laws: corruption. One of Professor Persily’s sidekicks at Balkinization, Heather Gerken, wrote in the American Prospect:
The truth is that the most important line in the decision was not the one overruling Austin [one of the precedents overruled by Citizens United]. It was this one: "ingratiation and access . . . are not corruption." For many years, the Court had gradually expanded the corruption rationale to extend beyond quid pro quo corruption (donor dollars for legislative votes). It had licensed Congress to regulate even when the threat was simply that large donors had better access to politicians or that politicians had become "too compliant with the[ir] wishes." Indeed, at times the Court went so far as to say that even the mere appearance of "undue influence" or the public's "cynical assumption that large donors call the tune" was enough to justify regulation. "Ingratiation and access," in other words, were corruption as far as the Court was concerned. Justice Kennedy didn't say that the Court was overruling these cases. But that's just what it did.
Professor Gerken teaches at Yale.
Next up, we’ll talk about where the Congress might go from here. The names Alan Grayson, Al Franken, Bruce Ackerman, and Ian Ayres may come up.