“Well, the court overruled part of what I wrote. . . . It is a source of concern today, the extent of campaign contributions and whether corporations and unions must be held to the [same] standard as an individual. These are tough issues for the nation and the court.”
‒ Justice Sandra Day O’Connor on Citizens United v. FEC, Newsweek, December 2010
What a difference a Justice or two can make. The notorious 5-4 decision in Citizens United v. Federal Election Commission would never have happened without the twist in history in 2005 that brought John Roberts and Samuel Alito to the Court.
The consequences are grave. As Justice John Paul Stevens wrote in his dissent, Citizens United is a “radical departure” from settled First Amendment law. Americans have worked to constrain the undue and corrupting influence of concentrated money in our democracy, particularly money of corporations, since the beginnings of the Republic. Until Citizens United, the tiny minority of Americans who share the current Court’s idiosyncratic view that the Constitution forbids Americans from doing so have almost always lost.
They lost in the Gilded Age, when the federal government and most states enacted Corrupt Practices Acts to end the domination of elections and government policy by corporate political spending. They lost when more than a dozen major corporations were prosecuted and convicted for illegal election spending after the Watergate scandal forced President Nixon to resign in 1974.
They lost in 1990, when the Supreme Court upheld Michigan’s law prohibiting election spending by corporations in Austin v. Michigan Chamber of Commerce. They lost in 2003 when the Supreme Court in McConnell v. Federal Election Commission upheld the same Bipartisan Campaign Reform Act provisions that Citizens United would strike down only a few years later. They might well have lost in the 1978 First National Bank of Boston v. Bellotti case that invalidated a state law prohibiting spending by corporations in citizen referenda, except for a false promise that other limits on corporate election spending would not be threatened (but that is another story).
So how did they win in Citizens United? Suddenly, they had five votes on the Court.