by Jeremy Leaming
Since the Supreme Court issued its opinion in Citizens United v. FEC in early 2010 it has become painfully clear that the majority opinion was poorly crafted and based on wobbly assumptions about the effects of corporate bankrolling of elections.
In late May, retired Justice John Paul Stevens, who lodged a concurring and dissenting opinion in the case, offered a number of reasons why the high court should revisit the majority opinion's holding.
Before hitting upon those reasons, Stevens, in a speech at the University of Arkansas Clinton School of Public Service, noted that the majority decision reversed “a century of law [upholding campaign finance regulations]” and it authorized “unlimited election-related expenditures by America’s most powerful interests.”
The opinion, Stevens continued, placed an enormous “emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity’” and claimed that when it comes to political speech the government is barred from restricting speakers.
Plenty of constitutional scholars have argued that the majority opinion fleetingly trampled precedent in support of campaign finance regulation to unveil a new right for corporations to spend wildly on politicking.
But Harvard Law School professor Benjamin I. Sachs in a recent op-ed for The New York Times notes that it also tramples the cherished First Amendment principle that the government cannot force individuals to support politicians or political causes.
Specifically Sachs notes that the “vast majority of people who work in the public sector – state, local and federal employees – are required to make contributions to a pension plan.” And nearly every state makes it mandatory for workers to participate in those plans. Not surprisingly, Sachs notes workers have little say in how the pension plans are operated and that “pension plans invest heavily in corporate securities: in 2008, public pensions held about $1.15 trillion in corporate stock.”