The recent Citizens United case (“CU”) has gotten a lot of attention of course as it will have a profound impact on the future of American politics. To summarize this very complicated case is not easy, but I will try: Before CU campaign finance reform laws set limits on the amounts that corporations could spend in support of a candidate. To get around that as much as possible, they had to set up political action committees (PACS) and work through multiple PACS which had their own limits. Then Hillary Clinton decided to run for president. That set in motion the formation of a non-profit corporation called Citizens United which created a movie that was essentially an attack ad against Hillary. When the Federal Elections Commission ruled that the CU was subject to spending limits and that the movie was corporate electioneering and clearly exceeded those spending limits, CU appealed all the way up to the Supreme Court. The Court ruled (5-4 of course) that the First Amendment protected the speech rights of corporations as much as it did individuals and that since the money was not given directly to a candidate the limits did not and should not apply. The decision went further to state that it was unconstitutional to limit this form of corporate speech.
At the announcement of the decision, many voices from both sides of the aisle decried it as “radical” and “game-changing” and as Sen. John McCain said in the NY Times: “This decision kills campaign finance reform and puts and end to the McCain-Feingold Law.” Corporations can now spend as much money as they want in favor or against a candidate for office. Who can compete with this if a large company is against you? How will a lesser known candidate with an agenda that may be anti-corporate on some issue (environment, labor, healthcare, civil liability) be able to combat limitless spending against his position?
One of the key ingredients to the decision was the idea that corporations are just like people and entitled to the same rights. That’s a ridiculous notion. The law considers corporations favored entities and proves them with numerous protections and tax breaks that individuals do not get. If they are the same as people, can they run for office? Why not, if this decision’s reasoning is stretched out a bit. Corporations’ one goal -by law- is to maximize profit. They have no morality nor are they required to have any concern for others. They are not the same as you and me. Well, they weren’t until a few days ago anyway.
But I want to focus on a different area of the decision that has not gotten much press. The Bushes have packed this court with relatively young idealogues whose main claim to fame is that they are anti-judicial activism and respectful of the founding fathers’ intentions. Yet it is becoming very clear that the Roberts’ court is willing to throw out this judicial restraint whenever it suits their agenda.
First of all, Roberts believes that only a handful of cases should get Supreme Court attention. That is why, despite the tremendous increase in population and litigation over the past five decades, the Court’s current case load is the same as it was in 1965. This Court has also done all it can to virtually eliminate Federal review of State convictions under habeas corpus. So with this philosophy of less is more as this current Court’s mantra, Citizens United first attracted attention when Roberts set aside a special day in September -one month before the Court session was to officially being- to hear arguments in the case. What was the rush? Why take on the extra workload all of a sudden? To protect the free speech rights of corporations? Jefferson and Adams must be so proud. The Court also specifically asked the parties to brief the question of whether they should overturn not one, but two prior rulings (Austin v. Michigan Chamber of Commerce, and the parts of McConnell v. FEC that uphold regulation of corporate spending in candidate elections). Ironically, the last time the Court interrupted its summer recess for a special session was to hear one of those cases, McConnell v. FEC, six years ago. Before McConnell, the Court hadn’t returned to DC for a pre-Term summer session since 1974, when in United States v. Nixon it ordered President Richard M. Nixon to surrender his secret Watergate tapes.
The decision also went further than it had to. The Court could have simply said that this movie was not a political ad but rather entertainment and therefore not covered at all by the campaign finance limits. It did not have to make such a global, sweeping decision that completely changed American politics. That is called judicial activism – a major no-no among the conservative sect.
Furthermore, by delving into an area covered by the McCain-Feingold bill which has been repeatedly attacked and upheld as constitutional, the Court is “legislating from the bench” a sin greater than all others (except abortion) to the ultra-right.
The decision also invalidates many State’s campaign finance law with one stroke. The Governor of Wisconsin for example opined that this decision turns his State’s campaign laws into “waste paper.” Of course, this Court has been the darling of the conservative corner for its belief in “State’s rights” and for a limiting role of the Federal government. This is a radical turn away from that position.
But most striking is the opinion’s effect on stare decisis. That is the legal principle on which our common law is based: that once an issue is decided by a court, then succeeding courts are obliged to follow that law as precedent. This assures that the law does not change every time we get a new composition of the Supreme Court, so that their is some finality and regularity. When John Roberts was appearing at his confirmation hearing, I told my first year law students that they could play a drinking game by doing a shot every time he said “stare decisis.” One student kept tabs and it would have meant doing 72 shots! Because what Roberts was saying was that he would not gratuitously overturn Roe v. Wade since he firmly believed in stare decisis. Now he readily did away with stare decisis by overturning two prior Supreme Court decisions on the very same subject; one of them just six years ago. Does this mean he will be willing to do the same for the right type of challenge to Roe? Or maybe Brown v. Board of Education is also up for grabs.
I can understand why First Amendment proponents like Floyd Abrams and Nadine Strossen are hailing the decision; they were against the potential chilling effects of McCain-Feingold from the beginning. I have tremendous respect for both of them and agree with them 99% of the time, but you still can’t yell “fire” in a movie theater. Certain limits can be placed on free speech for public safety and for the good of the community. But most importantly, the issue was decided – right or wrong, it needs to run its course to see how our society is effected by its implications. The Supreme Court has done U-turns before (Brown reversed Plessy v. Ferguson’s separate but equal is equal) but only after considerable time had passed and it was clear that the decision had a negative impact on American society.
So the important implication for me of the CU case will be to see if it indicates a new willingness of the Roberts court to throw away stare decisis on a whim. Previously Justice Scalia said in an opinion that Roberts’s employs “faux judicial restraint.” Well, in this decision judicial restraint went out the window. We now need to see if the baby was thrown out with the bathwater as well.