Ortiz on Citizens United and the Supreme Court's Shift Away from Protecting Voters
Citizens United v. FEC, the controversial U.S. Supreme Court case that helped proliferate Super PACs, did more than change the funding model of U.S. elections, says University of Virginia law professor Dan Ortiz.
The case offered yet another indicator that the court has largely abandoned the idea of protecting individual voters' rights in favor of creating a structure that promotes free expression in the marketplace of ideas. Ortiz explores the implications of that shift in his new article, "Recovering the Individual in Politics," which will appear in New York University's Journal of Legislation and Public Policy early this summer.
Ortiz, an expert on constitutional law and electoral law, discussed his forthcoming paper with the Law School.
You write that in a number of recent election law decisions, the Supreme Court's interpretation of the First Amendment has overlooked the importance of individual participation and instead emphasized the protection of social processes. Can you elaborate on this?
In its recent campaign finance decisions, the court has not judged campaign finance regulations by how they affect an individual's or entity's right to participate in the political process but rather by how they affect the marketplace of ideas. It has focused attention away from questions like whether certain people or entities have participation rights that are burdened to whether a particular regulation impairs people's ability to hear ideas.
What are a few recent Supreme Court decisions that best illustrate your argument?
The most notable — to some, most notorious — is Citizens United, the case in which the Supreme Court struck down regulations that prohibited business corporations and unions from spending from their general treasury funds to run broadcast, cable and satellite advertisements featuring candidates for federal office within a certain window of the general and primary elections. The court didn't ask whether corporations and unions have the same right to participate in electoral activities as natural people or whether their participation might affect others' ability to participate. Instead, it said that the identity of the speaker didn't matter. Since it believed that corporate advertising, just like advertising paid for by natural people, helped the marketplace of ideas function more robustly, the court held that corporate spending in elections should enjoy the same basic First Amendment protection that spending by natural people does.
Can you point to a few practical effects of this shift? What does this mean for the average American voter?
First, it means that there will be lots of advertising from sources that there wasn't so much from before. And, to those who fear that politicians are beholden to those whose efforts and money help elect them, it means that government will pay even more attention to a powerful set of special interests than before.
Why do you believe the Supreme Court should be doing more to protect individual participation in politics?
Maybe I have a romanticized view of how politics can function, but, to me, the individual voter should stand at the center of things. The voter's consent, after all, is what ultimately legitimates government. The more active the citizenry participates, to my mind, the better.
In light of the controversy surrounding the Supreme Court's decisions in cases like Citizens United, are there any particular reforms that you would recommend?
The present court has made it hard to regulate many forms of campaign spending except through disclosure, a regulatory technique under which spenders have to identify themselves, how much they're spending, and on what. Required disclosure is still constitutionally permissible and should be adopted. Unfortunately, robust disclosure rules help only so much and politically it can be hard to have them adopted. Many in Congress don't want heightened disclosure requirements right now because it would make it more difficult for outsiders to spend on their behalves.
How did you become interested in this topic?
Election law and campaign finance, in particular, are long-standing interests of mine. My first academic legal paper, my law school note, was on an election law topic and I've worked this corner of the law ever since.
How does this article fit in with your overall scholarship?
It presses further several ideas I've suggested in earlier papers on campaign finance, particularly the idea that our views on the constitutionality of campaign finance regulation turns largely on how we believe individuals actually make political decisions.
How do you believe voters make political decisions?
Different people make them differently. Study after study shows that most of us are fairly uninformed. We don't know much about the candidates and issues that we're voting on and, to the extent we know anything at all, most of it comes from so-called "shortcuts," like party identification. And that ignorance is rational. We don't know much not because we're stupid but because the chance that our vote will make a difference is so small that it doesn't make sense for us to invest much time and energy in gathering information. Some of us, by contrast, know a lot about politics, but for most in this group it's because they view politics like a hobby. In other words, they derive pleasure from following the ups and downs of races and want a part of that excitement. Many of us are somewhere in between. And our knowledge about the issues probably varies from election to election. The trick of any well-functioning political system is to interest as many people as possible as deeply as possible in elections. But we all have other, central parts of our lives to attend to and most of us can devote only so much time to politics.