The Error in DTA v. Schneider
The district court has enjoined enforcement of Maine’s Question 1, the initiative limiting contributions to independent expenditure committees (aka, “SuperPACs” — “Super,” that is, if they aren’t so limited). The opinion is here.
No one should be surprised that a district court would follow the decisions of many other courts, even if none of those courts technically have any jurisdiction over it. We have long recognized our critical fight will be in the First Circuit Court of Appeals. As the appellant, we will now have two briefs to make our arguments to that court, not just one.
But in this essay, I want to isolate the error in the district court’s reasoning. Put most simply, the error is this: The District Court ignored the reasoning of Citizens United.
The critical passage in the court’s opinion is this:
I do not read the Supreme Court as suggesting that independent expenditures are wholly incorruptible, but rather that they are sufficiently removed from the candidate so that the danger of such corruption is “substantially diminished” to the point that the government’s “anticorruption interest is not sufficient to displace” First Amendment protections. … Given that contributions to independent expenditures are one step further removed from the candidate, the logic of Citizens United dictates that the danger of corruption is smaller still.
The implication of this analysis is that Citizens United was considering corruption on a sliding scale, and that it found “independent expenditures” “sufficiently removed” from the corruption side of that scale to protect them. It follows from this way of understanding Citizens United that something even further removed from the corruption side of that scale would also be protected.
So, e.g., if you think of corruption as a kind of radiation, Citizens United was saying that “independent expenditures” were far enough removed from that radiation to be safe for democracy. And as contributions to independent expenditure committees would be even further removed from that radiation, they too would have to be safe for democracy.
That makes sense in theory. It does not make sense of Citizens United. To the contrary, that analysis wholly misunderstands the logic behind Citizens United.
The logic of Citizens United
The core idea standing behind Citizens United is that the government’s interest in limiting speech depends on there being a risk of “quid pro quo corruption.” “Quid pro quo” meaning “this for that.”
So, for example, in Robert Menendez’s 2015 indictment for bribery, one of the alleged QPQs could have been restated like this:
“If you (Salomon Melgen) donate to my SuperPAC (the QUID), I (Senator Menendez) will help you get visas for your three girlfriends (the QUO).”
Citizens United says — technically—that the interest in avoiding such QPQs is a sufficient interest for suppressing political speech. But Citizens United also says that interest could not — as a matter of logic—justify limiting “independent expenditures” supporting or opposing a candidate, because an “independent expenditure” could not—as a matter of logic—create a risk of QPQ corruption.
Why?
Here’s where careful attention to the logic of Citizens United is essential. (And “careful attention” does not mean you must agree with it; you must only understand it.)
For there to be a QPQ between a candidate and someone else, those two people must “coordinate” something. No doubt, not all coordination indicates a QPQ; but every QPQ involves coordination. Put in logical terms: coordination is a necessary condition of a QPQ; it is not a sufficient condition of a QPQ. Or again, every QPQ involves coordination; but not every coordination is a QPQ.
So the statement “You should run your ads supporting me on Monday and Wednesday” evinces “coordination”; it does not establish a QPQ. It is a QUID (here’s what you will do) without showing any QUO (here’s what I will do in exchange).
But remember the key point: If there is no coordination, there could be no QPQ.
Citizens United said this (emphasis added): “by definition, an independent expenditure … is not coordinated with a candidate.” Which means, “by definition,” there could be no QPQ interest in suppressing an independent expenditure. If “coordination” is a necessary condition of there being a QPQ, then the absence of “coordination” means there is no QPQ.
This logic is thus the reason Citizens United banned limits on independent expenditures by corporations — not because they were “sufficiently removed” from the risk of corruption, as the district court put it. And in so doing, Citizens United was simply following the same logic that it had applied in Buckley v. Valeo (1976), when it struck limits on independent expenditures by individuals. In both cases, because there is “by definition” no “coordination,” there could be, “by definition,” no QPQ corruption.
“But what if there is coordination?,” you ask. “What if Menendez tells Melgen: ‘Spend $100k on targeted digital ads favoring my election.’”?
Citizens United and Buckley both address that hypothetical: If there is coordination, then the expenditure is deemed a donation rather than an expenditure. (Buckley: “such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act.” 424 U.S., 46.)
Thus, even without showing a QPQ, Buckley upheld the law’s deeming a coordinated expenditure as a donation. Or again, even without showing a QPQ — an agreement that Melgen would get anything in return for his expenditure—the law “treats” the expenditure as a donation. And because that donation would exceed the limits on donations, Melgen would be liable for violating those limits. The law deems the expenditure a donation, and thus deems Melgen as violating the law that limits the size of a donation.
Why this logic has nothing to do with contributions to SuperPACs
So consider two cases:
- Candidate says to a PAC: “Please spend $100k on newspaper ads.” The PAC agrees. As I just described, that is “coordination.” Even without proving the “coordination” was a QPQ, “by definition” it is not “independent.” Because not “independent,” the law thus treats it as a direct contribution to the campaign. As it is larger than the contribution limits, it is a violation of campaign finance law.
- Candidate says to a donor: “Please contribute $100k to that PAC.” The donor agrees. That too is “coordination.” Even without proving the “coordination” was a QPQ, “by definition,” the donation is not “independent.” But the law does not treat that donation as a contribution to the candidate just because it is not “independent.” So regardless of its size, it is not a violation of campaign finance law. What it is instead is a massive loophole through which coordinated donations that are part of QPQs might well pass — which is why Mainers voted overwhelmingly to ban them.
This, therefore, is the key: Under the logic of Citizens United, coordinating an expenditure makes it “not independent.” But Citizens United says nothing about coordinating a donation. A coordinated expenditure by a SuperPAC is a donation to the campaign, while a coordinated donation to a SuperPAC is still a donation to a SuperPAC. And while again, not all “coordinated donations” will be QPQs, some plainly are. The logic of Citizens United permits the state to regulate where there is a risk of a QPQ — meaning Citizens United permits the state to regulate where there is coordination that creates the possibility of a QPQ. There is such a risk with with donations; there is no such risk with “indepedent expenditures.”
Or tl;dr: Coordinating an expenditure makes it a donation to the campaign, subject to the limits on the size of a donation to the campaign. Coordinating a donation to a SuperPAC does not make it a donation to the campaign, allowing it to be a loophole through which corrupting QPQs may flow.
This raises an obvious question: Could an alternative way to avoid QPQs be simply to ensure that no candidate “coordinates” with any donor to either a campaign or a PAC? So rather than capping contributions to campaigns, simply say that so long as the contribution is “independent,” meaning “by definition … not coordinated with a candidate” or his/her agent, it can be unlimited.
Logically, that would certainly be equivalent: If you ensure no “coordination” in the contribution, you ensure no QPQ is tied to the contribution.
But practically, that would be wholly unworkable: The candidate or their agents would have to be disconnected from any fundraising, or talking to anyone who would be giving money, etc. Or if I talk to a candidate on Monday, is my contribution on Wednesday “independent”?
Even clearer: There would be no practical way for a committee or a PAC to ensure that the donation was “independent.” A PAC can at least ensure that its expenditures are not coordinated. The chairperson of the PAC can direct the staff: “do not coordinate with the campaign.” But a PAC cannot ensure that a donation was not coordinated. It receives a check. It has no way to know what led to the check being sent to the PAC. And this is true with a campaign as much as with a PAC.
This is why the law upholds an alternative strategy for avoiding QPQs: Limit the size of the contribution, on the theory that if the size of the contribution is low enough, no one would believe that it involves a QPQ.
Thus, the law says you can’t give more than $3,500 to a federal candidate in any election cycle. The theory behind that limit is that $3,500 is so low that no one would believe a politician would sell government favors for just $3,500.
But notice that this alternative is not as logically clean as the “no coordination” rule: Logically, if there is no coordination, there is no QPQ. But it doesn’t follow as a matter of logic that if a donation is below a specified limit, there is no QPQ. It could well be that a candidate is desperate — “Sure, I promise to vote for the widget bill if you give my campaign $1,000.” There’s nothing logically impossible about that QPQ, like there is something logically impossible about a QPQ without coordination. Nonetheless, the Court in Buckley upheld this less-logically-clean alternative, because the alternative to it — only permit donations where there has been no coordination—is an alternative that would be impossible to enforce practically.
And here’s where the idea of “appearance of corruption” becomes clear: Buckley said the state is free to regulate corruption and “the appearance of corruption.” But what it meant by “appearance” is really what an ordinary person would reasonably assume is happening behind the scenes. If I know donations are capped at $3,500, I don’t actually have to know much about what anyone is saying to anyone else to believe that it is unlikely that the donation is part of a QPQ. But if donations are not capped, and the only way QPQs are avoided is by ensuring there is no “coordination,” then I need to know a great deal about the relationship between donors and candidates to know whether there is coordination. As I will never know enough, a system that permits contributions of unlimited size will appear corrupt. Or as Buckley put it (424 U.S., 27-28):
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the
opportunities for abuse inherent in a regime of large individual financial contributions…. Congress could legitimately conclude that the avoidance of the appearance of improper influence “is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.” … Congress was surely entitled to conclude that … contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.
Put more simply: The alternative strategy to avoiding QPQs — limit the size of the donation — is the better means by which to ensure donations are not QPQs than trying to block the coordination of donations at all.
tl;dr:
The district court’s interpretation of Citizens United is wrong: Citizens United, like Buckley before it, is grounded in the logic of QPQ corruption, not in the messy game of determining which arrangements are “sufficiently removed” from the risk of corruption. Under the logic of Citizens United, while independent expenditures (because uncoordinated) create no risk of QPQ corruption, donations to an independent expenditure committee may or may not be coordinated, so may well create the risk of QPQ corruption. And because they may create that risk, 600,000 Mainers — the most to vote for anything on any Maine ballot ever — were right to conclude that the alternative strategy for limiting the risk of QPQ corruption — limiting the size of contributions — was the better strategy.
