Boden Lecture: The Real Problem With Citizens United: Campaign Finance, Dark Money, and Shadow Parties

Marquette Law Review Volume 97 Issue 4 Summer 2014 Article 3 Boden Lecture: The Real Problem With Citizens United: Campaign Finance, Dark Money, and Shadow Parties Heather K. Gerken Yale Law School, Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Election Law Commons Repository Citation Heather K. Gerken, Boden Lecture: The Real Problem With Citizens United: Campaign Finance, Dark Money, and Shadow Parties, 97 Marq. L. Rev. 903 (2014). Available at: http://scholarship.law.marquette.edu/mulr/vol97/iss4/3 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact . GERKEN-FINAL (6-30-14) (DO NOT DELETE) 7/2/2014 5:33 PM MARQUETTE LAW REVIEW Volume 97 Summer 2014 Number 4 BODEN LECTURE MARQUETTE UNIVERSITY LAW SCHOOL OCTOBER 7, 2013 THE REAL PROBLEM WITH CITIZENS UNITED: CAMPAIGN FINANCE, DARK MONEY, AND SHADOW PARTIES HEATHER K. GERKEN * INTRODUCTION ........................................................................................... 904 I. THE REAL PROBLEM WITH CITIZENS UNITED .................................... 906 A. Why the Court’s Rulings on Corporations and Austin Were Doctrinal Sideshows ....................................................... 907 B. Why the Court’s Ruling on Corruption Mattered ................... 908 II. DARK MONEY AND SHADOW PARTIES .............................................. 910 A. The Challenge of Party Regulation: Political Elites as Shape-Shifters ............................................................................ 911 B. Parties as Shape-Shifters ............................................................. 912 1. The Presidential Nomination Process ................................. 913 2. Shape-Shifting and Party Regulation in Wisconsin ........... 914 C. Independent Spending in 2012 and Beyond: The Rise of Shadow Parties?......................................................................... 915 1. SuperPACs and Nonprofits: The New Home for Party Elites? ................................................................................... 916 *J. Skelly Wright Professor of Law, Yale Law School. What follows is a lightly footnoted, lightly edited version of the speech I delivered as the Boden Lecture at the Marquette University Law School. Many thanks to the dean and faculty of Marquette University Law School for giving me this extraordinary opportunity and offering such helpful comments. Thanks also to Ana Muñoz for a comment in class that prompted me to think harder about the role of the party faithful. GERKEN-FINAL (6-30-14) (DO NOT DELETE) 904 MARQUETTE LAW REVIEW 7/2/2014 5:33 PM [97:4 2. Where Will Jim Messina Work in 2020?............................. 917 III. WHY WE SHOULD PLACE OUR FAITH IN THE PARTY FAITHFUL .......................................................................................... 921 CONCLUSION................................................................................................ 922 INTRODUCTION I want to begin by thanking Marquette University Law School and the organizers of the Boden Lecture for inviting me here today. It’s an honor to be invited to deliver a lecture named after such an illustrious dean. And it’s an honor to be invited by Dean Joseph Kearney, who is not just a distinguished dean in his own right but someone known in the legal world for his integrity and decency. Even back in the days when we clerked together, he held the respect of every clerk at the Supreme Court. It has been especially lovely to watch him during the last twentyfour hours. There’s an old saw in election circles that one campaigns in poetry and governs in prose, and it’s been a delight to watch Dean Kearney move seamlessly from one to the other. When he speaks about the students, the faculty, or the mission of Marquette Law School, it’s all poetry. And yet Dean Kearney is also the person who instructed me that this talk should be forty-three minutes long. Today I will use my forty-three minutes to offer food for thought. Not a fully-worked-out theory, not a firm claim, but a series of observations about the current state of campaign-finance law and its long-term effects on American politics. Here’s what I’m not going to say: I’m not going to tell you the nearubiquitous tale that reformers, reporters, and even a fair number of academics tell about the current state of campaign finance. That story is 1 that the Supreme Court’s decision in Citizens United treated corporations as if they were individuals for the first time. It thereby ushered in a new era of corporate spending, with wealthy corporations spending wildly, saturating the airwaves, and taking over American politics. The story is that Citizens United has caused a sea change in 2 American politics, and the Court’s overturning of Austin —the muchrevered case in which the Court upheld campaign-finance regulations in 1. Citizens United v. FEC, 558 U.S. 310 (2010). 2. Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990). GERKEN-FINAL (6-30-14) (DO NOT DELETE) 2014] THE REAL PROBLEM WITH CITIZENS UNITED 7/2/2014 5:33 PM 905 order to promote equality—was the modern-day equivalent of Plessy v. 3 Ferguson. Even setting aside the overwrought reference to Plessy, almost all of that story is wrong, and some of it is utter nonsense. And I say that not as someone who is against campaign-finance regulation, but as someone who believes in it. I say that as someone who believes that there is a bigger story about the relationship between Citizens United and American politics; it’s just not the story the media and reformers are telling. Here I will argue that the so-called “dark money” trend may be a symptom of a deeper shift taking place in our political process. And it is one that Citizens United has helped bring about. Citizens United mattered, but not for the reasons that most people seem to think. Here, in short, I hope to tell you the real problem with Citizens United. Part I offers a brief history of campaign-finance reform and debunks the conventional wisdom about the case. It ends by suggesting that Citizens United mattered for reasons that have little to do with corporations or equality. Instead, the most important part of the opinion concerned the relationship between independent spending and corruption. Part II shows how the Court’s corruption ruling has changed the political landscape. We all know that there is more “dark money” in the system—money spent by sources that are virtually untraceable—and we all know how troubling it is to have large amounts of dark money flowing through the election system. But the conventional wisdom may be missing something more fundamental about the effects of Citizens United: The decision may ultimately push our current pa (...truncated)