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The End of Campaign Finance Law as We Knew It

The Article argues that Citizens United v. FEC ended campaign finance law as we long knew it, but for reasons that have little to do with corporate electioneering. Although the public outcry and legal scholarship have focused on the decision’s narrow effect on corporations, the Article demonstrates how the decision’s broader logic transformed campaign finance law beyond corporate electioneering and led within months to the nearly complete de-regulation of independent expenditures in time for the 2010 elections. Last year’s elections provided only a glimpse of what the Article calls the reverse hydraulics of de-regulation, and as the Article argues, this new de-regulated world of campaign finance is not a better one.

Citizens United therefore is a clear turning point for not just campaign finance law, but for all regulation of the relationship between campaign money and the political process. However, the Article surprisingly concludes in the end that the Supreme Court actually may be sympathetic to alternate forms of regulation of political corruption, notwithstanding Citizens United’s broad skepticism about corruption. Namely, the Court may be much more sanguine toward government regulation of campaign money’s influence when it is structured as ex post regulation of the legislative process on the back end, as opposed to the ex ante structure of campaign finance regulation. Citizens United, when considered in light of other recent Court decisions, point this way forward for campaign finance reform without campaign finance regulation.

Result or Reason: The Supreme Court and Sit-In Cases

How do Supreme Court justices decide controversial cases? Are the justices more interested in the result reached or the reason for reaching that result? The sit-in cases of the early 1960s present a case study of this important institutional and jurisprudential question. During the early 1960s, black college students entered segregated lunch counters and refused to leave upon the orders of the owners. Challenging this discrimination under the Equal Protection Clause, these protestors confronted the “state action requirement.” This requirement forbids only state action that violates equal protection rights, allowing individuals to be as intolerant as they please and setting up a conflict between “constitutional values of the highest order: liberty and equality.” Specifically, the liberty of individual business owners to engage in discrimination on their private property set against the right of black patrons to be served on terms equal to white customers.

The Supreme Court heard a series of cases involving the sit-ins during 1962 and 1963, overturning protestor convictions in every case yet avoiding resolution of the central constitutional question: Does the discrimination of private owners of businesses of public accommodation constitute state action? Scholars have always assumed (based on the Court’s obvious preference for overturning convictions) that the Court was prepared to find such private action to be state action, vindicating equality over liberty. Exploring internal Court documents, this Note rewrites this history and illuminates the concerns of the justices in rendering legal judgments within this morally and politically charged arena. Contrary to the conventional wisdom, a majority of the Court subscribed to a doctrinal position that dictated a narrow interpretation of the state action requirement, a position that vindicated the liberty interests of discriminating proprietors. Thus, the outcome of the sit-in controversy (overturned protestor convictions without a constitutional ruling) reflected a complicated, and often painful, balance between concrete results and the intellectual inclinations of the justices. Ultimately, three key justices compromised their intellectual inclinations in favor of their preferred result, ducked the constitutional question with its broad potential effects on individual rights, and left final resolution of the controversy to Congress in the 1964 Civil Rights Act; thereby implying underlying institutional and intellectual limitations on the Court.

Securing Sovereign State Standing

States can premise standing to sue as plaintiffs in federal court upon three main categories of interests—proprietary, sovereign, and quasi-sovereign interests. Proprietary and sovereign interests, this Note contends, are held independently by states qua states, whereas quasi-sovereign interests are derivative of citizens’ collective welfare concerns. This Note attempts to correct the pervasive confusion clouding the boundary between sovereign and quasi-sovereign interests, arguing that they are meaningfully distinct and should be treated differently.

This argument is especially important in the context of the jurisdictional bar instituted by the Supreme Court in Massachusetts v. Mellon, which prohibits states from pursuing “parens patriae” suits to shield their citizens from federal law. Parens patriae is a special type of representative standing through which states can vindicate generalized citizen interests. This Note argues that states act as parens patriae in the relevant context when they assert quasi-sovereign standing only—and thus not when they seek to defend their sovereign interests. The Mellon bar, therefore, should disallow only certain quasi-sovereign suits; it should be wholly inapplicable to sovereignty-vindicating claims.

Finally, a look at Virginia’s current attack on the constitutionality of recent federal healthcare reform, Virginia ex rel. Cuccinelli v. Sebelius, sharpens and contextualizes these issues. Virginia has asserted purely sovereign interests, but the federal government defendant has argued—incorrectly—that the Mellon bar should nevertheless apply.

This discussion is both timely, given the immediacy and prominence of the standing issues underlying the Virginia healthcare challenge, and significant, given its importance for fundamental and enduring issues of American federalism.

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