This election cycle, independent groups have spent $675 million to support the campaigns of their chosen candidates. Putting aside the impacts of money on democracy, this represents a massive increase in outside money pouring into the election compared to previous years. Many have pointed to the Supreme Court's 2009 decision in Citizens United v. Federal Election Commission to explain this increase in independent political expenditures. That ruling outraged liberals who felt that limiting restrictions on corporate speech would allow big corporations to influence political decision-making through large donations and drown out the voices of people lacking the resources to put out competing messages.
This year, the outrage continues unabated. In Colorado, supporters of Amendment 65 [PDF] are asking Colorado voters whether they want to join eight other states which have passed legislation in opposition to Citizens United. Montana voters also face a similar question in the form of voter initiative I-166 [PDF], four months after the Supreme Court summarily reversed a provision of the state constitution limiting corporate campaign spending. Amendment 65 and similar legislative measures are largely symbolic protests that challenge the Supreme Court's role as ultimate arbiter of the constitution.
The language of both Amendment 65 and I-166 contain pleasant sounding value statements such as "the interests of the public are best served by limiting campaign contributions, establishing campaign spending limits, full and timely disclosure of campaign contributions and strong enforcement of campaign laws," and "the people of Montana establish that there should be a level playing field in campaign spending, in part by prohibiting corporate campaign contributions and expenditures and by limiting political spending in elections." I-166, however, confronts the court more directly by declaring state policy to be that corporations are without constitutional rights.
The proposed changes to state law direct elected and appointed officials to support a constitutional amendment allowing Congress and the states to enact campaign finance reform and strip corporations of constitutional protections. Both initiatives contain language that "instructs" and "charges" state legislatures to pursue an amendment to the US Constitution that would reverse Citizens United.
Such attempts to "instruct" elected officials on how to vote have no force of law nor should they. The point of representative government is to give different communities of interest a voice and not subjugate them to the will of larger majorities. Allowing a bare majority of Coloradans to pass a constitutional amendment that would mandate the decisions of officials in every legislative district in the state would subvert the representative nature of government. The drafters of these resolutions clearly recognize this, and consequently use the use of the words "instruct" and "charge" rather than "mandate." Representatives' primary charge is to look out for their constituents' interests. Those interests should not be trumped by the interests of a larger majority.
It is even more presumptive to claim the authority to direct the individual decision-making powers of elected representatives. Edmund Burke, in his Speech to the Electors of Bristol, proclaimed that an elected representative clearly owes a duty to constituents "[b]ut his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man or any set of men living. They are a trust from Providence, for the abuse of which he is deeply answerable."
If these measures have no force of law, then what is the point of passing them? Why should Colorado incorporate what amounts to a temper tantrum by sore losers into its constitution? Supporters say that by measures against Citizens United at the state level they can develop the momentum needed to pass a federal constitutional amendment. That may be so, but the adverse reaction of liberals to Citizens United has deeper roots and implications for constitutional law.
In Citizens United, Justice Anthony Kennedy writes in the majority opinion that the court "has rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not 'natural persons,'" and affirmed the court's previous conclusion in Buckley v. Valeo that a "restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached."
Amend 2012, one of the main groups advocating a federal constitutional amendment, succinctly articulates its contrary position: "The US Supreme Court said in the Citizens United decision that corporations are people and money is free speech. We know and you know how ridiculous that is." This light-hearted mission statement raises one of the most profound questions of constitutional theory: what happens when the court gets it wrong? This open resistance to the Supreme Court's interpretation of the constitution stems from the idea that it is the constitution itself, rather than the decisions of the court, which is the supreme law of the land.
In his controversial critique of the Court's dictum in Cooper v. Aaron which characterized one of its decisions as equivalent to the supreme law of the land, Edwin Meese wrote that the logic behind that assertion "was, and is at war with the constitution, at war with the basic principles of democratic government and at war with the very meaning of the rule of law." Meese, citing Lincoln's response to Dred Scott, argued that we, and the other branches of government, owe our allegiance to the constitution and that when the Supreme Court makes unconstitutional decisions, it is our duty to offer up some form of resistance.
Amendment 65 and I-166 appear to be state-initiated expressions of the kind of resistance that Meese advocated. Between these measures and the voter-initiated attempts to legalize marijuana at the state level in Washington and Colorado, it seems the left has rediscovered federalism as a tool for challenging the federal government. Liberals should remember that extra-judicial constitutional interpretation is a double-edged sword. Corporate personhood was not the only personhood referendum proposed for this year's ballot.
More concerning is the attempt to use decisions like Citizens United and Bush v. Gore to question the very legitimacy of the Supreme Court. This loss of faith is what Owen Fiss [PDF] refers to as a new nihilism, "one that doubts the legitimacy of adjudication." Should the majority conclude that the foundations of legal authority are fraudulent, the future of the Republic is surely jeopardized.
The political action pushed by Amend 2012 and other groups at the state level serve no practical purpose other than as a form of resistance to a constitutional interpretation which they disagree with, and frankly that purpose is legitimate in and of itself. But advocates from both the right and the left should tread carefully when challenging the Court. Judicial review has worked reasonably well as a system for interpreting the law of the US, but the authority of the court rests on the people's perception that its pronouncements are legitimate. Were the legitimacy of the court to expire, any institution which stepped in to replace it would be far less legitimate in the eyes of the citizenry.
Matthew Skeen is the president of the Federalist Society at the University of Colorado Law School. He has interned at Skeen & Skeen P.C.
Suggested citation: Matthew Skeen, Sound and Fury: Campaign Finance in 2012, JURIST - Dateline, Nov. 6, 2012, http://jurist.org/dateline/2012/11/matthew-skeen-campaign-finance.php.
This article was prepared for publication by Alex Ferraro, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to him at firstname.lastname@example.org