Amid the frenzy over the much-anticipated Supreme Court decision regarding the constitutionality of the Affordable Care Act, the Court handed down its decision in American Tradition Partnership, Inc. v. Bullock. The American public and media, with laser focus on the Court’s decision in National Federation of Independent Business v. Sebelius, didn’t seem to be listening when the Supreme Court quietly disposed of its opportunity to reconsider its 2010 decision permitting corporations to contribute to political campaigns. This is the very same American public and media that criticized the Court’s campaign finance rulings as leading to unprecedented levels of outside money pouring into the presidential campaign, much of which is now raised by corporations. True, the Court’s decision regarding the Affordable Care Act may impact the 2012 presidential race. Yet, since the Court issued its 2010 decision in Citizens United v. Federal Election Commission it has been regarded by many as the most contentious Supreme Court decision since Bush v. Gore.
Last month, the Supreme Court, in a 5-4 decision, issued a per curiam opinion in American Tradition Partnership, Inc. v. Bullock, in which the Court struck down a Montana law restricting corporate political contributions. The Montana law provides that, “a corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” The question presented to the Court was whether or not Citizens United applies to the Montana law.
Anticipated by many as the Court’s opportunity to revisit its 2010 decision in Citizens United, the court summarily reversed the Montana Supreme Court’s ruling and provided very little explanation. Specifically, the Court provided that, “Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish the case.”
While the dissent echoes the concerns of those that criticize Citizens United, even the dissenting justices remain skeptical that the Court will revisit its decision in Citizens United. In fact, at least four members of the court considered American Tradition Partnership, Inc. v. Bullock to be the Court’s opportunity to revisit its decision in Citizens United. Yet, these same members of the Court do not see “a significant possibility of reconsideration.”
Although the Supreme Court refused an opportunity to revisit Citizens United with its decision in American Tradition Partnership, Inc. v. Bullock, it may have another opportunity to do so in the near future. In fact, this month the Fourth Circuit Court of Appeals affirmed the constitutionality of a federal law making it illegal for corporations to make direct contributions to political candidates.
In United States v. Danielczyk, defendants William Danielczyk and Eugene Biagi face criminal charges stemming from an alleged solicitation of direct contributions to Hillary Clinton’s 2008 presidential campaign. At the time of the charged conduct, Danielczyk served as a chairman, and Biagi served as secretary for Galen Capital Corporation. Danielczyk hosted a fundraiser for Clinton’s campaign, and solicited donations from attendees. In exchange, Danielczyk promised to reimburse the donators with money from Galen Capital Corporation. And, Danielczyk made an effort to conceal these reimbursements by labeling them as “consulting fees” in the checks’ memorandum lines. In total, Danielczyk and Biagi reimbursed the donors for $156,400 in campaign contributions. The defendants were later indicted on seven charges stemming from the contribution scheme.
Of primary import in United States v. Danielczyk is a question that Citizens United fails to answer. The Federal Election Campaign Act of 1971 (“FECA”) made it unlawful for corporations to make both direct contributions to political campaigns, and independent expenditures on speech which expressly advocated for or against the election or defeat of a particular candidate. In Citizens United, the Court struck down that portion of the statute which made independent expenditures by corporations unlawful. In support, the Court reasoned that independent expenditures constitutes protected political speech and that, “the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity.” At its core, the Court’s decision rests on its conclusion that the government’s interest in preventing corruption is not an adequate basis upon which to chill political speech.
At issue in United States v. Danielczyk is whether or not the Court’s decision in Citizens United also held unconstitutional FECA’s ban on direct corporate contributions to political campaigns. The Fourth Circuit Court of Appeals reversed the decision of the district court and held that Citizens United does not render unconstitutional FECA’s ban on direct corporate contributions. According to the three-judge appeals panel, Citizens United explicitly declined to address the issue of whether or not FECA’s ban on direct corporate contributions was an unconstitutional restriction on political speech. In support of its reasoning, the panel points to the Agostini Principle, which provides that “in circumstances when Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, courts should follow the line of cases which directly controls, leaving the Supreme Court the prerogative of overturning its own decisions.” In essence, because the Supreme Court upheld FECA’s ban on direct corporate contributions in Beaumont v. FEC, the Fourth Circuit Court of Appeals is not in a position to question the constitutionality of the law, even if Citizens United calls into question Beaumont’s reasoning.
The Supreme Court’s opportunity to revisit its decision in Citizens United is squarely presented in United States v. Danielczyk. However, it is unclear whether or not the Court will take that opportunity. And, if Justice Scalia has any input, the prospect for reconsideration appears to be narrowing. In fact, Justice Scalia made a rare television appearance last week, which many regard as an effort to stifle rumors that there is animosity brewing between the conservative members of the Court and Chief Justice Roberts. In that interview, Justice Scalia addressed concerns over the impact of Citizens United and hinted at the prospect for reconsideration by the Court. Justice Scalia defended the Court’s decision to give corporations the right to contribute money to political campaigns, stating that, “I think that Thomas Jefferson would have said the more speech, the better.” Furthermore, “that’s what the First Amendment is all about. So long as the people know where the speech is coming from.” If Justice Scalia’s comments are any indication of how the Court will treat another opportunity to revisit Citizens United, it appears that the decision, while contentious, is likely here to stay.