DOJ Appeals ‘Citizens United on Steroids’ Decision

Our Guest Blogger is Mark Ladov, Counsel for the Brennan Center’s Democracy Program.

As readers of this blog know, a Virginia district court judge overseeing a criminal prosecution recently took the radical and wrongheaded step of declaring the federal ban on corporate contributions directly to candidates to be unconstitutional.  This decision extends beyond Citizens United because that case only permits corporations to run their own ads or otherwise act independently of a candidate’s campaign. Federal prosecutors today filed an appeal of that decision with the Fourth Circuit Court of Appeals.

The Fourth Circuit should have no trouble reversing the lower court’s ruling.  Indeed, as Think Progress recently noted, the Ninth Circuit just upheld San Diego’s similar ban on corporate and union contributions.  The Ninth Circuit’s careful reasoning stands in sharp rebuke to the U.S. v. Danielczyk opinion, which misinterpreted Citizens United and the controlling Supreme Court precedents.

Despite the damage wrought by Citizens United, the Supreme Court has done nothing to challenge the validity of contribution limits.  The Court has always recognized that contribution limits are an important anti-corruption tool.  And the federal ban on contributions by corporations and unions—like San Diego’s similar ban—ensures that contribution limits are not evaded.  This isn’t an idle concern.  In states that allow corporate contributions (like New York and Maryland), there is plenty of evidence that wealthy donors use corporations and subsidiaries—and create shell corporations and LLCs—to evade contribution limits and buy extra influence.  Striking down the federal corporate contribution ban would create a similar loophole for Congress, and could render federal contribution limits meaningless for wealthy special interests.

There’s nothing new or particularly noteworthy about the corporate contribution ban.  Congress enacted it in 1907, based on complaints of undue corporate influence on Progressive Era politics.  The Supreme Court upheld this ban less than a decade ago in a case called FEC v. Beaumont—in part due to the well-founded fear that corporate contributions would be used to circumvent federal limits.

Despite the misconceptions of the Virginia district court, Citizens United did nothing to disturb that ruling.  Citizens United may have erred by taking an overly narrow view of corruption, and by wrongly assuming—without any proof—that independent political spending cannot corrupt elected representatives or the political process.  But it never questioned the need to protect reasonable contribution limits.  As was easily recognized by the Ninth Circuit (following similar rulings by the Second and Eighth Circuits), Citizens United expressly declined to cast any doubt on the Supreme Court’s long-standing rule (dating back to 1976 and Buckley v. Valeo) that contribution limits are permissible because they entail “only a marginal restriction upon the contributor’s ability to engage in free communication.”

The Danielczyk court, alone among federal courts, found otherwise.  In doing so, it flouted Supreme Court precedent.  Unfortunately, however, the district court acted well within the spirit of “extreme judicial activism” represented by the Citizens United decision.

By reaching beyond the narrow questions posed in Citizens United and ruling so broadly, the Supreme Court gave an emphatic green light to wealthy special interests that have long sought to dominate our politics.  The Court did not merely strike down restrictions on corporate spending that stood for over a century.  It also encouraged big political spenders to redouble their efforts to evade the rules that we have implemented to prevent political corruption.

It’s no surprise that big money is taking up this invitation.  For example, we’ve recently seen a scheme by the Republican Super PAC that would encourage federal candidates, officeholders and party officials to violate federal rules against the solicitation of unlimited contributions.  These solicitation rules (like San Diego’s corporate contribution ban) are designed to shore up reasonable contribution limits—and to prevent our elected officials from selling access and influence to the highest bidder.  The Brennan Center and others have asked the Federal Election Commission to hew to the rule of law and advise that this scheme remains a clear violation of federal statute and Supreme Court precedent.

But it’s more disappointing when a federal judge ignores the rule of law in favor of the radical spirit of Citizens United.  We hope that when the Fourth Circuit reviews the Danielczyk decision on appeal it follows the reasoned and conservative approach taken by the Ninth Circuit and other federal courts.