Private: Reviving Equality: What the United States Can Learn from Canada

By Dan Tokaji, Professor of Law, Ohio State University, Moritz College of Law. Professor Tokaji is also a member of the ACS Board of Directors. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC.

Contrary to popular belief, the most significant aspect of last year's Citizens United v. FEC was not its conclusion that corporations have free speech rights. The Supreme Court actually settled this question long ago. Nor is the main problem the influx of anonymous corporate spending on federal elections. Citizens United may have exacerbated this problem, but it existed before - and, at any rate, identification of big spenders can be addressed through tougher disclosure and reporting laws.

The most significant and damaging aspect of the Citizens United decision was its obliteration of equality as a rationale that may sometimes justify limits on political spending. Overruling this aspect of the decision is a precondition to real campaign finance reform. In thinking about what can be done to promote political equality, the United States would do well to consider Canada's example.

Citizens United was correct to affirm that campaign-related expenditures - whether made by corporations or by individuals - have an expressive quality that warrants some degree of constitutional protection. Where the Court erred was in failing to recognize the consequences of the fact that money is essential to political participation. If effective electoral speech requires money, then those without money lack an equal voice in our democracy. The ultimate consequence is to skew political debate in favor of the wealthy, both in terms of who gets elected to office and the decisions they make once in office. This is anathema to a democracy committed to the principle of "one person, one vote." In effect, the have-alots have a much greater say in our political system than the rest of us.

Students of American campaign finance law might note that Citizens United's rejection of equality is nothing new. That is partly true. Since Buckley v. Valeo (1976), the Court has purported to forbid campaign spending restrictions designed to promote equality. Buckley famously prohibited government from "restrict[ing] the speech of some elements of our society in order to enhance the relative voice of others." On this basis, the Court struck down limits on individual expenditures in federal campaigns.

Notwithstanding this proclamation, the Court subsequently allowed electoral equality as a rationale for spending limits. In Austin v. Michigan Chamber of Commerce (1990), the Court upheld a prohibition on corporate expenditures in candidate elections, to curb "corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Although the Austin Court dressed its holding in the language of anticorruption, the reality is that equality lay at the heart of this decision. The notion of distortion rests on an alternative conception of what the political system should look like - namely, a system where political influence doesn't depend on wealth. But if one accepts such an egalitarian rationale for regulating corporate expenditures, it should apply with the same force to individual spending. After all, individuals as well as corporations generate wealth through the help of the corporate form, not to mention other state and federal laws.

There was thus a fundamental inconsistency between Buckley and Austin. While the former rejected political equality, the latter embraced it. Citizens United resolved this conflict - but, unfortunately, did so precisely the wrong way, overruling Austin. Even more depressing for reformers, even the dissenting justices in Citizens United backed away from Austin's egalitarian rationale, as Rick Hasen has observed.

Though Austin was the most conspicuous Supreme Court decision to allow equality as a rationale for campaign finance regulation, it was not the only one. There have been other cases in which the Court has allowed equality to come in through the back door, disguised as an anticorruption rationale. In McConnell v. FEC (2003), the Supreme Court upheld key portions of the Bipartisan Campaign Reform Act (McCain-Feingold), ostensibly based on the anitcorruption rationale. In reality, McConnell relied on a form of equality rationale - specifically, a concern that big money donors would enjoy disproportionate influence on the back end of the political process, because members of Congress would feel beholden to them. Although the Court used the language of anticorruption, the ultimate concern was inequality when it comes to the outputs of the legislative process.

In Citizens United, the Court returned to a narrower conception of corruption. Specifically, it rejected the government's argument that the prohibition on corporate expenditures was justified by the concern that they would "corrupt" the legislative process by giving corporations excessive influence. Instead, the Court suggests that corruption consists of an exchange of campaign cash for political favors - something that is very hard to prove. The anticorruption rationale has moved like an accordion, expanding in McConnell only to contract again in Citizens United.

There is zero chance that the current majority on the Supreme Court will suddenly see the error of its ways when it comes to equality as a rationale for campaign finance regulation. But the current Court will not sit forever. In the meantime, those who subscribe to an egalitarian vision of democracy have important work to do. We should outline a new jurisprudence, one that will recognize equality as a central democratic value without eclipsing other interests.

In doing so, American reformers should look to the example of Canada. The Canadian Parliament and Supreme Court have embraced an egalitarian vision of democracy with the same gusto that the U.S. Supreme Court has rejected it. An example is Harper v. Canada (2004), in which Canada's Supreme Court upheld limits on outside spending to elect or defeat candidates. In a self-conscious rejection of Buckley, the Court declared that "the State can restrict the voices which dominate the political discourse so that others may be heard as well." By doing so, it promotes a "level playing field" for all its citizens.

Canadian case law also shows that acceptance of the equality rationale is not a rubber stamp for any campaign finance regulation that the government adopts. In two previous cases, which I've described here, Canada's Supreme Court struck down restrictions on campaign spending, without denying equality as a permissible rationale. In these cases, the Court reasoned that these restrictions had the effect of restricting outsider perspectives that would not otherwise be heard.

In addition, the Chief Justice of Canada's Supreme Court dissented in Harper on the ground that the restriction on outside spending went too far. This is a plausible argument - and the right question to ask. But the Harper dissenters did not outright reject equality as a rationale, as the U.S. Supreme Court has done. In fact, all of the justices on Canada's Supreme Court accept equality as a rationale for regulation; by contrast, none of the U.S. Supreme Court justices in Citizens United embraced the equality rationale.

Acceptance of equality as a rationale won't make hard questions surrounding campaign finance regulation disappear. It will, however, ensure that we are asking the right question: Whether particular regulations will really promote political equality, without unduly infringing other values like fair competition. The time has come for U.S. reformers to embrace equality openly, rather than continuing to disguise it in the garb of anticorruption. This approach will not find favor before the current U.S. Supreme Court. In the long run, however, it will lead us toward a healthier democracy that more closely approaches the ideal of equality for all citizens, regardless of wealth.

Campaign Finance, Constitutional Interpretation, Democracy and Elections, Supreme Court