Election Law Experts Worry about Effects of Citizens United Decision on Future Campaigns

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New York, Feb. 4, 2010 – After the Supreme Court last month struck down restrictions on corporate spending in federal elections, the decision ignited a debate on how it might shape future campaigns.
 
There is little doubt in the mind of James Tierney, director of the National State Attorneys General Program at Columbia Law School of what Citizens United v. Federal Election Commission has wrought.
 
“Everybody knows,” Tierney said at a Feb. 2 panel discussion on the case in Jerome Greene Hall.
 
Noting that 39 states have judicial elections, and 43 states elect their attorney general, Tierney said: “What paragraph gets left out of a brief? What criminal case gets brought civilly? What civil case doesn’t get brought at all? What procurement system for a county might be a little less transparent than it might have been? So, the impact of this decision is that we don’t really know, but everybody knows.”
 
Nathaniel Persily, the Charles Keller Beekman Professor of Law and Political Science, who moderated the discussion, said the decision, which invalidated some laws that limited political speech, suddenly invested corporations and unions with First Amendment protections normally reserved for the media.
 
“One of the big points of contention is whether the court went too far,” Persily said.
 
Richard Briffault, the Joseph P. Chamberlain Professor of Legislation, said Citizens United also stands out as a marked departure from the “judicial modesty” that Chief Justice John Roberts has advocated.
 
“It strikes me as a very strong decision,” Briffault said. “They’re going to be the campaign finance policymakers. It’s not a matter for the states. It’s not a matter for Congress to decide or the voters to decide. They’re it.”
 
Also on the panel were New York University law professors Richard Pildes and Samuel Issacharoff, who said many electoral reforms over the last 20 years made it harder for candidates and political parties to receive donations, and allowed interest groups to become more dominant.
 
“The question is where is the money going to come from and how are we as the voters going to respond to that,” Issacharoff said. “The harder question is where do we want the money to go?”
 
For Tierney, the answer depends on who is asking the question. A former state legislator and attorney general in Maine, Tierney recalled campaigning at a bar one night and took off his coat while he talked to the patrons there. He got home that night, reached into his coat and pulled out two $50 bills.
 
“Now, I don’t know, as a lawyer, who put that cash in my pocket, but I know who did it,” he said. “And the guy who did it knew that I’d know. And in many ways, that’s what this decision is about. Everybody knows what this means, really. Everybody knows.”
 
The event was organized by the Law School's Federalist Society chapter, and was co-sponsored by the Columbia chapter of the American Constitution Society, the Law School Republicans, the Law School Democrats, and Impact.
 
 
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