A cautionary note on Citizens United

Daniel H. Lowenstein is professor of law at the UCLA Law School and Director of the Center for the Liberal Arts and Free Institutions at UCLA. He writes to comment on today’s Supreme Court decision:

For those of us who follow campaign finance regulation carefully, today’s Citizens United decision is indeed important. The Austin case, which is now overruled, had allowed prohibition of “independent” campaign spending by corporations. Such spending (and also such spending by labor unions) will now be constitutionally protected.
In addition, Austin had relied on an odd definition of “corruption.” Corruption in that case included the “corrosive” effect of money being used to influence elections that had not been raised for political reasons. In other words, when I pay money to Safeway I do it because I want some food, not because of Safeway’s political views. If Safeway then uses that money to support a candidate, there is a corrosive and thus corrupt effect.
This was important, because the Court has said that only the avoidance of corruption justifies restrictions of campaign expenditures and contributions. Citizens United now limits “corruption” to the improper influencing of candidates and public officials.
So that’s significant, but it is by no means revolutionary. Nor is it ground for celebration by Power Line readers who believe campaign finance should be unregulated. Austin has always been an anomalous decision within the Court’s campaign finance doctrine. The Court’s doing away with that anomaly creates no reason to expect it to reshape the remainder of the doctrine.
The prohibition of corporate contributions (and of “coordinated” corporate campaign expenditures, which are treated as in-kind contributions) is unlikely to be affected by Citizens United. Even less likely to be affected are the many restrictions on individuals.

Professor Lowenstein thus draws attention to the narrowness of the Court’s decision in Citizens United. Professor Lowenstein’s cautionary note — cautionary because the whole edifice of campaign finance reform beyond required disclosure should be taken down — joins the plethora of good commentary regarding Citizens United that is available today on the Web.
UPDATE: Professor Lowenstein writes with one point of clarification:

One point of clarification, which I bother to mention only because it relates to something that might interest you and your readers. The new UCLA Center that I am directing is not part of the law school….It was created last year in the Division of Humanities and its pedagogical concerns are primarily directed toward undergraduates.
The reason I think you and your readers may be interested is that our center and several others that have been created in recent years at places like Duke, Brown, Georgetown, and Colgate, attempts to provide an alternative to trends in higher education that exalt extreme specialization, arcane theoretization of the humanities, and sometimes exclusive preoccupation with race, class, gender, and sexual orientation. The centers vary among themselves. Many are concerned mainly with the American founding and, perhaps, free markets. Ours has a broader scope, emphasizing study of the great achievements of western civilization. Our goals undoubtedly overlap considerably with those of the reform candidates you have supported for the Dartmouth governing board.
Our center, like all or most of the others, is not engaged in ideological advocacy. If anything we do touches on ideologically salient questions, our goal will be to achieve balance. But much of the financial support for centers like ours comes from conservatively oriented groups. For example, our first public event, a four-day Lincoln Celebration last November, was funded largely by a grant from the Bradley Foundation.
The Veritas Fund, under the Manhattan Institute and run by Jim Piereson, is a major source of support for several of the centers. These groups believe that the best solution to extreme ideological imbalance on university faculties is not to provide equal time for and equal faculty slots for conservatives (though that might be a second-best solution), but to depoliticize the universities and get them back to what should be their central missions–the handing down of our civilizational heritage and the pursuit of new knowledge and understanding. There is a brief mission statement for our center here.

Thanks to Professor Lowenstein for the clarification. I have slightly revised the introductory paragraph of this post to reflect it.


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