Fordham Law Professor Zephyr Teachout and former Federal Election Commission Chairman Bradley Smith—legal scholars whose works were cited in the United States Supreme Court’s landmark Citizens United ruling—detailed the legal, historical, and experiential underpinnings of their opposing views on the role of money in American politics during a March 14 event held at the Law School.
The speakers’ remarks centered around the Supreme Court’s controversial 5-4 ruling in Citizens United vs. FEC (2010) and the role of campaign finance regulation in America’s democracy. Justice Anthony Kennedy cited Smith’s book Unfree Speech: The Folly of Campaign Finance Reform in his majority opinion, while Justice John Paul Stevens cited Teachout’s 2009 Cornell Law Review article, “The Anti-Corruption Principle,” in his dissent.
Critics of Citizens United, such as Teachout, say the court’s decision not only allowed corporations to invest millions in dark money into super PACs, in order to shape voter’s opinions, but also transformed the culture of political campaigns in a harmful fashion. She called the case “tragic,” describing its effects on American political life as “devastating.”
As an example, Teachout recounted her own experience as a Democratic candidate for U.S. House of Representatives in New York’s Hudson Valley region. At least three billionaires poured $500,000 apiece into super PACs supporting her opponent, drastically increasing the negative TV advertisements people saw in the days leading up to the election, Teachout said, informing the audience such donations would have been illegal in 2009.
“It is not enough to overturn Citizens United,” said Teachout, author of Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, published in 2014. “We also have to change how we fund elections, and recognize that, if we want freedom and representation, we need to find some way to publicly fund them.”
Otherwise, the consequences, as Teachout sees them, are very clear.
“You have representatives who are not representing the people but rather their imaginative life is occupied by a handful of people who do not live in the district,” Teachout added. “They’re thinking about their wealthy donors, thinking about what they want, thinking about them strategically.”
Smith opened his remarks with a primer on Citizens United, the conservative nonprofit that sought an injunction against the FEC to prevent the application of the Bipartisan Campaign Reform Act of 2002 (BRCA) to its film Hillary: The Movie. Citizens United existed, as corporations do, to bring people together to accomplish goals—in this case, to “agitate about politics and candidates,” explained Smith, who served on the FEC from 2000 to 2005. He chaired the organization in 2004.
Bradley Smith
“When we’re talking about Citizens United, where’s the corruption?” asked Smith, who now teaches at Capital University Law School in Columbus, Ohio. “How was anybody corrupted by Citizens United? They were just making a movie that expressed a lot of their political views.”
Smith likened Citizens United’s use of money to widely spread its message with the tactics of Occupy Wall Street, and he encouraged audience members to think about how money works in politics.
“It enables people to be heard, gets more voices in play, and ultimately where we’re equal is we go cast our vote,” Smith declared. In addition, he expressed skepticism about allowing the government to decide “when someone has spoken too much or when they have too much power.”
The BRCA, co-sponsored by Sens. John McCain (R-AZ) and Russ Feingold (D-WI), did not seek to decide whether content was politically objectionable, Teachout pointed out, but rather provided “bright-line rules” that sought to answer factual questions such as how close to an election the content aired and whether it named an opposing candidate.
As a result of Citizens United, a handful of wealthy businesspeople control enormous sway over our political system, Teachout said, while “an incredible amount of voices are not being heard.” When Smith noted that Democratic billionaires Tom Steyer and George Soros were highly involved in financing campaigns, Teachout emphasized that they did not speak for her. The former political candidate noted she received 100,000 donations averaging around $19 apiece during her congressional campaign.
Teachout highlighted viewpoint neutrality and incumbent protection as important measures necessary to combat the overflow of money in political campaigns and the restriction of citizens’ voices in matters that impact their lives. Further, she stressed the need for citizens to “respect the incredible difficulty of establishing and maintaining freedom.”
“I think we’re in a really scary moment right now,” Teachout observed. “Unlike Brad, I don’t see the tournament of oligarchs as a true expression of free and open debate.”
Fordham’s chapter of the Federalist Society for Law & Public Policy Studies hosted the event.
