Citizens United v. FEC

  • January 24, 2011
    Guest Post

    By Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor, The University of Chicago Law School. Professor Stone is also Chair 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.
    The decision in Citizens United v. FEC poses an interesting puzzle about judicial consistency. The general assumption is that "conservative" justices are deferential and restrained in their interpretation of the Constitution. Citizens United stands this assumption on its head.

    After the era of the Warren Court, political conservatives like Richard Nixon attacked the Court as activist. The proper stance of a judge should be more passive. A judge should not second-guess the reasonable judgments of legislatures. Nixon therefore appointed justices - Burger, Blackmun, Powell and Rehnquist - who would be appropriately conservative - that is, restrained - in their exercise of the power of judicial review. They would not make the same "mistake" as the liberal justices of the Warren Court by too readily substituting their own judgments about the nature of a good society for those of elected officials. Justices respecting this approach certainly would not have voted to invalidate the McCain-Feingold Bipartisan Campaign Act.

    In the 1980s, political conservatives came up with a new theory of constitutional interpretation - originalism. The core idea of originalism was that, although the baseline for judicial interpretation should be restraint, justices were justified in being more muscular in their application of the Constitution when they were carrying out the original understanding of those who enacted the particular provision at issue in any given case. By so doing, originalist justices would avoid the activism of the Warren era, but avoid the abdication of judicial responsibility that is inherent in across-the-board judicial restraint. Whatever one thinks of originalism as an interpretative approach (I don't think much of it), it certainly leads to the opposite result in Citizens United. No one could argue with a straight-face that the original understanding of the First Amendment was to invalidate laws limiting the amount of money corporations could spend to elect their favored candidates.

    One has to wonder, then, what possessed the five conservative justices - Roberts, Kennedy, Scalia, Thomas, and Alito - to reach the result they did. Of course, this is hardly the only anomaly in the performance of these justices. There activist votes to invalidate laws in other areas, like affirmative action, gun regulation and commercial advertising, pose the same puzzle. If their votes are not shaped by the values of restraint or originalism, what is the underlying theory of their jurisprudence? Are they just calling balls and strikes?

  • January 24, 2011
    Guest Post

    By Brenda Wright, director of the Democracy Program at Demos. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.
    The one-year anniversary of Citizens United v. FEC has prompted many insightful examinations of what the decision has wrought in the past year; but equally important is an assessment of the future of the First Amendment in light of the Supreme Court's current docket - which includes McComish v. Bennett, a challenge to Arizona's public financing law that will be argued on March 28.

    One year ago, I noted that the Roberts Court had, in Citizens United, created the Anatole France First Amendment: in its "majestic impartiality," the First Amendment permits massive corporations and ordinary citizens alike to spend as much as they want to elect their preferred candidates to office.

    In 2011, opponents of public financing now ask the Supreme Court to create the Cowardly Lion First Amendment. You will recall that the Cowardly Lion, when he first appears in "The Wizard of Oz," tries to attack Toto, a tenth of his size; but then is reduced to indignant tears when little Dorothy stands up to him and slaps his nose. In like manner, the McComish petitioners claim a debilitating fear that under Arizona's system, privately financed candidates - the Lions of campaign finance, who can spend as much as they want, without any limit - are facing "hostile speech" (their words) from the Totos - the publicly financed opponents. They cite this fear as creating a constitutional injury requiring Court intervention. In short, the Supreme Court is being asked to declare that the First Amendment exists to ensure the right of privately financed candidates to speak without being responded to by publicly financed candidates.

    Let's put this in context. In recent weeks we've been vividly reminded that persons seeking public office in these rancorous times must all too often be prepared to face death threats and worse. Yet the McComish petitioners argue that these same aspiring public servants must be considered so emotionally fragile that they will be afraid to spend money on their campaigns if they know it could merely trigger additional funds to their opponents to use on responsive campaign ads or mailings - and that the First Amendment must protect them from such a terrible fear.

  • January 24, 2011
    Guest Post

    By Jamie Raskin. Mr. Raskin is a Maryland State Senator, a constitutional law professor at American University, and a Senior Fellow at People for the American Way. He introduced SB 690, which became in April 2010 the first Benefit Corporation law in America. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.
    You never change things by fighting the existing reality. To change something, build a new model that that makes the existing model obsolete. -- Buckminster Fuller

    The modern American corporation is bound by law to pursue a single objective in everything it does: increasing company profit. If it deviates from profit maximization, shareholders can bring the house down in a derivative suit.

    This relentless profit motivation works wonders financially but is dangerous to the common good. For what is profitable for one company may not be beneficial for everyone. This is why popular forces in America have always tried to build regulatory fences around corporations to contain the damage of their "externalities," such as catastrophic oil spills in the ocean, collapsing oil mines that kill the parents of small children, consumer fraud, sickening peanut butter and food-borne diseases, economic monopolies, mortgage scams, stock market rip-offs, economic crashes and so on.

    Perhaps the most important fence hemming in corporate power has been the ban on corporate political spending. This is the first line of defense for popular democracy because it allows our representative institutions sufficient freedom from corporate influence to set up the other fences that we need. To get meaningful food and drug safety laws, consumer protection laws, workplace equity laws, and clean water laws, we need campaign finance laws that permit representatives in Congress and the state legislatures to be elected in a way that is free of corporate control and manipulation.

    The Supreme Court in Citizens United v. FEC demolished our first line of defense against corporate control of our representative institutions. Five corporate-minded justices -- let's call them "Justices United" -- not only tore down the fence guarding popular democracy but seriously trashed the fence protecting the "free market," which is democracy's next-door neighbor.

  • January 21, 2011
    Guest Post

    By Jeffrey D. Clements, Principal, Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. He is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights." This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC.
    A year ago, on the day that the Supreme Court decided Citizens United v. FEC, I wrote here at ACSblog that the Court's failure to recognize the difference between corporations and people, the difference between a free speech case and a corporate regulations case, squarely frames the question of whether our American Republic will remain a government of the people. I said that it is "time to support and work for a 28th Amendment to correct the Court" and to "remove unwarranted judicial controls on our lawmakers' oversight of corporate power." From the perspective of twelve months passing, was this view of Citizens United, shared by many, unduly alarmist? Was the call for a Constitutional Amendment melodramatic and unnecessary? And, as some of my friends ask from time to time, "how's that campaign to save the nation going anyway?"

    I have bad news and good news. The bad news is that those who view the Court's decision as a "strike at the heart of democracy," in the words of President Obama, are correct. The pay-to-play crony capitalism vision of America that underlies Citizens United, where citizens in a republic become consumers or spectators in corporate "marketplace" elections, and the people's representatives dance only to corporate tunes, shows every sign of coming to ultimate fruition. The alternative vision, one of a vibrant, innovative, responsible and confident republic of free people and free markets, where the people decide the appropriate place of corporations in our society, seems to fade into history.

    Last November, we had the first post-Citizens United election, the most expensive federal mid-term election in history. Four billion dollars was spent, and at least hundreds of millions of dollars in corporate money passed through front groups with innocuous sounding names to define who was good, who was bad, and what issues mattered. Sixty percent of eligible voters did not bother to vote. And you can be sure that the threat of the billions of dollars of corporate money that is now available for electioneering and independent expenditure campaigns in 2012 is being felt in the halls of Congress, our state houses, town halls, and, perhaps most sadly, in our halls of justice where judiciaries are subject to retention votes or other elections.

  • January 21, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision Citizens United v. FEC. The author, Paul S. Ryan, is FEC Program Director and Associate Legal Counsel at The Campaign Legal Center.
    One year ago, Justice Kennedy wrote in Citizens United, on behalf of eight of the Court's nine Justices: "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today." Nor, sadly, did it exist after that day.

    Justice Kennedy offered these words as solace to those who feared the consequences of the Court's decision to unleash of millions of corporate dollars into our political process. He continued: "The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

    Justice Kennedy claimed to be striking a balance. Corporations get unrestrained political speech, while the electorate gets effective disclosure of who is behind that speech.

    Unfortunately, the electorate got the short end of the stick. Corporations spent unknown millions in 2010 elections, but the "campaign finance system that pairs corporate independent expenditures with effective disclosure" simply does not exist.

    Though Congress, through the enactment of the Bipartisan Campaign Reform Act of 2002 (BCRA), dramatically improved campaign finance disclosure, the Federal Election Commission (FEC) has since eviscerated the law.