Green Party Presidential candidate William Kreml describes the evolution of the 2010 Citizens United ruling.
So much talk about the Supreme Court case of Citizens United v. The F. E. C. (2010), with so little understanding. My Philosophy of Science professor, Elinor Ostrom, is the only woman to win the Nobel Prize in Economics. She intentionally fell outside the micro economics of what is usually called “The Chicago School.” Her method was holistic. Her purpose was equitable. Her attraction was that she thought in an altogether different way about matters of importance than most political economists.
What Elinor insisted on was that her students become aware of the pyramid of knowledge, as well as the ladder of abstraction. Some concepts are more important than others. Lesser concepts need the ladder in order to find the most powerful explanation for whatever needed exploration. In doing so, she drew on notions like “the forms” at the core of the Platonic writings, referencing those who saw only the reflected shadows on the cave wall.
The notion of “the forms” evolved in intellectual history. It may have reached its zenith when the two greatest philosophers since the Greeks, Immanuel Kant and G. W. F. Hegel, wrote of their differentiated perspectives on the equation 5 + 7 = 12. Kant labelled the equation “synthetic”, while Hegel labelled the equation “analytic.” What do those terms mean? What they mean, for our purposes, is nothing more complicated than when we talk about apples and apples and apples and oranges. Analytic is the former; synthetic the latter.
Now we are engaged in a great legal civil war, testing whether our legal system can provide equitable law. The camel of inequity stuck his nose under the tent of outlandish campaign expenditures with Buckley v. Valeo, a 1976 case that distinguished between contributions to political campaigns and expenditures on campaigns. That distinction was made by the justice who wrote the opinion in Buckley, the inestimable Lewis Powell, who had but briefly beforehand written the infamous Powell Memorandum explaining to President Richard Nixon how the rabble had taken over the country—and how to get it back. Even former football standout Byron “Whizzer” White and Associate Justice said the above distinction was nonsense but the other six associate justices and the Chief Justice went along with Powell, and the parade of electoral oligarchy stepped off into history. Contributions could be limited. Blow the door off with expenditures and no court would interfere.
Slow forward to the case that I believe made Citizens United (2010) inevitable. Reformers like the Republican Senator John McCain (AZ) and Democratic Senator Russ Feingold (WI) passed a seemingly innocuous law that forbade “issue advertising” 30 days before a federal primary and 60 days before a federal general election. The right-wingers wouldn’t have it. They sued; they won, and we were another step closer to Monty Hall’s Door Number Three. FEC v. Wisconsin Right To Life (2007), along with other cases that space does not permit full explication of here, left little wiggle room for any restriction on campaign expenditures, no matter how artfully the money had to find its way to the watering hole of such expenditures.
What to do? My solution comes from nothing more fancy than what is required of any fundamental problem. Do basic research. Thank you, Elinor Ostrom. What is the cognitive nature of the original seven articles of the Constitution? The highly centrifugal nature of the Founders government finds the document to be analytic, not synthetic. The founders, creating a barely functioning government, made it difficult for citizens to aggregate in majoritarian discourse and governmental action. Separation of powers. Federalism. Bi-cameralism. Staggered Elections. Separation of people, wherein members of one political branch may not serve in the other, all scream centrifugality. The interactions between individuals, or even corporations, with such a set-up would invariably dictate arms-length, contractually-formed, interactions. The large campaign contribution was deliberately non-aggregative. Something up close and personal was going on between the giver and the taker.
But what of the Bill of Rights? The simplest fact is that the telos, or purpose of the Bill of Rights was to facilitate political aggregation. It was the Anti-federalists’ response to the Federalists’ elitism. Each Amendment facilitates political togetherness. So for campaign reform, go to the top of the knowledge pyramid. Go specifically to the Seventh Amendment, which permits an aggregated jury to alter what they considered to be an unfair contract and have their fact finding be impervious to appellate court (read Federalist appointed judge) alteration. The Seventh Amendment is the direct response to Article One, Section Ten, which forbade any “Law impairing the Obligation of Contracts,” the kind of thing places like Rhode Island were doing before the Constitution. Such political aggregation of average citizens is what the Bill of Rights protected. The small contribution and the large contribution are qualitatively, not just quantitatively different. One is protected speech; one is not.
Prof. William P. Kreml is a Distinguished Professor Emeritus in the Department of Political Science, The University of South Carolina. He is the author of nine books on American government, constitutional law, and political theory. He was the principal drafter of the charter, or constitution, of the national Democratic Party (1976), and finished second in the Green Party presidential primaries in the year 2016.