Appearances are Everything . . .

In the case of Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), the United States Supreme Court struck down what had been considered firmly-entrenched restrictions on corporate political expenditures. Id. at 913. In doing so, the majority seemingly dismissed the notion that the public does, more often than not, perceive a corporation’s political expenditures (as distinguished from contributions) to be analogous to bribes since the elected representative’s human nature would prompt him to feel as if he owed something to the corporation that essentially put him in office. Id. at 909. In fact, studies have supported that notion by concluding that people are wary of corporate political participation because “[corporations] are more likely to get what they want from elected officials because they wield disproportionate influence on voters, or because they are not people, citizens, or voters and behave differently than those actors in a way that can be harmful to the democratic process.” Saul Zipkin, The Election Period and Regulation of the Democratic Process, 18 Wm. & Mary Bill of Rts. J. 533, 580 (2010). At first glance, it seemed that the Citizens United majority appreciated the abovementioned principal by citing the case of Federal Election Commission v. National Conservative Political Action Committee, where the Supreme Court itself had previously noted that “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.” 470 U.S. 480, 497 (1985).

Nevertheless, the Citizens United majority reached the opposite result, concluding that just because speakers may influence elected officials, it does not necessarily follow that those officials are corrupted by that influence. “The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.” Citizens United, 130 S.Ct. at 910. In a weak attempt to illustrate its unsound proposition, the Court glossed over the case of Caperton v. A.T. Massey Coal Company, 129 S.Ct. 2252 (2009). In carefully choosing only the language that supported its opinion, the majority highlighted the Caperton Court’s holding that a judge is required to recuse himself “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Citizens United, 130 S.Ct. at 910 (citing Caperton, 129 S.Ct. at 2263-64). The Citizens United Court was quick to rely on the superficial conclusion that the Caperton decision did not restrict speech; rather, it merely required a judge’s recusal when impartiality would be questionable. Id. The issue, however, is whether unlimited corporate expenditures could result in the appearance of impropriety. That being said, was not the questionable impartiality in the Caperton case caused by the influence of the “speech” involved? Simply put, the Caperton case seems to prove, rather than negate, what the Citizens United majority was trying so hard to deny—that independent expenditures can potentially promote the appearance of corruption when dollars essentially manifest themselves in the form of political favors.

On the other hand, in his dissenting opinion in the Citizens United case, Justice Stevens (joined by Justices Ginsburg, Breyer, and Sotomayor) fathomed what the majority did not—that the Caperton case actually proves “that even technically independent expenditures can be corrupting in much the same way as direct contributions . . . .” 130 S.Ct. at 967. In the Caperton case, Don Blankenship was the chief executive officer of a corporation that was involved in a lawsuit pending before the West Virginia Supreme Court of Appeals (“WVSCA”). Id. (citing Caperton, 129 S.Ct. at 2257). Before the lawsuit arrived in front of the WVSCA, Blankenship had spent the statutory maximum on contributions to Brent Benjamin, a candidate who ran for, and successfully obtained, a seat on the WVSCA. Id. Furthermore, Blankenship “donated almost $2.5 million to ‘And For The Sake Of The Kids,’” a §527 corporation that ran advertisements attacking Benjamin’s adversary. Id. As if that were not enough, Blankenship also spent over $500,000 on independent expenditures in support of Benjamin’s campaign. Id. The question of “whether a constitutional violation existed when a justice refused to recuse himself from a case when he had received numerous campaign contributions and expenditures from one of the parties” was subsequently appealed to the United States Supreme Court. The Court could not in good conscience, after considering all of the facts, deny that Blankenship played a pivotal role in getting Benjamin elected to the WVSCA. Id. Thus, the Supreme Court concluded that the entire situation created a “constitutionally intolerable probability of actual bias.” Id. (citing Caperton, 129 S.Ct. at 2262).

The Citizens United dissent thus recognized that, in the Caperton case, “Justice Benjamin would nevertheless [have felt] a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.” 130 S.Ct. at 967. Accordingly, the Citizens United dissent appreciated the fact that “some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.” Id. at 968. Thus, the Caperton decision, although addressing an individual’s participation rather than a corporation’s, demonstrated that “‘certain restrictions on corporate electoral involvement’ may likewise be needed to ‘hedge against circumvention of valid contribution limits.’” Id. Such restrictions are necessary after considering the general public’s bitterness toward a corporation’s expenditures that seem to “buy” political access and favors from the particular candidates it essentially puts in office. Therefore, one may wonder: “Is it really a good idea to allow corporations the opportunity to spend unlimited amounts on political expenditures, even if it would result in the appearance of impropriety?”