“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.
At the end of the Supreme Court’s term on June 1, 2005, Justice Sandra Day O’Connor, who had authored key parts of the McConnell decision, retired at the age of 75. Then, in September, as the U.S. Senate Judiciary Committee prepared for hearings on President George W. Bush’s nomination of John Roberts to replace her, Chief Justice William Rehnquist died at 80 of thyroid cancer, leaving two vacancies on the Court. Rehnquist had been in the majority in Austin and was a fierce opponent of fabricating free speech rights for corporations.
With Rehnquist’s death, President Bush shifted the John Roberts nomination to the Chief Justice spot. Roberts offered assurances to the Senate and to the nation: He believed in stare decisis, in consensus rather than sharp departures in the law, and in a humble role for Justices―a role confined to “calling balls and strikes.” He would not venture into experiments in Constitutional law.
“I am not an ideologue,” promised Roberts, “judging is different than politics.” Reassured, the Senate swiftly confirmed Roberts in a vote joined by all the Republicans and half of the Democrats.
As for Samuel Alito, “legal scholars described his jurisprudence as cautious, respectful of precedent—and solidly conservative.” A 58-42 Senate vote to replace O’Connor with Alito duly followed.
Conventional wisdom, particularly armed with these assurances, might have predicted a period of continuity, with President Bush merely appointing conservatives to replace conservatives. That could not have been more wrong.
Almost immediately, Roberts and Alito joined Justices Scalia, Kennedy, and Thomas in creating a 5-4 wrecking ball against precedent and expectations. The most reckless, consequential impact came in Citizens United and a series of related cases that quickly followed.
The 5-4 Citizens United decision in January 2010 held that modest federal limitations on election spending by corporations for or against candidates violated corporations’ free speech rights. The kind of precedent that Roberts promised to respect ‒ including Austin v. Michigan Chamber of Commerce and the relevant part of the 2003 McConnell v. Federal Election Commission – was overruled.
They were just beginning. The Court then set out to ensure that states would not be able to ameliorate the impact of Citizens United. First, in 2011, a 5-4 decision in Arizona Free Enterprise Club PAC v. Bennett struck down an Arizona “clean elections law” that allowed publicly financed candidates to receive additional state election funds to respond to the extraordinary spending for privately financed candidates that Citizens United had unleashed. The 5-4 Court concluded that this mechanism could discourage the wealthy from using big money to dominate election races, thus violating the free speech rights of the wealthy donors.
Illustrating the depth of hostility to the notion that Americans have equal rights to participate in elections and to be represented, Chief Justice Roberts even left his humble judicial perch to embark on his own investigation before oral argument: “I checked the [Arizona] Citizens Clean Elections website this morning and it says this Act was passed to ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that [the law] is unconstitutional?”
A year later, the same majority slapped down the Montana Supreme Court in American Tradition Partnership v. Bullock. The Montana Supreme Court had concluded that the state’s 1912 law limiting spending by corporations in state elections was justified by a long record of corruption, seeking to distinguish Citizens United. Brushing aside the call of Justices Stephen Breyer and Ruth Bader Ginsberg to use the case to reexamine Citizens United, the 5-4 Court instead summarily reversed the Montana Supreme Court and wiped out a century of state Corrupt Practices Acts without a hearing.
Not long afterward, the same 5-4 majority struck again. In McCutcheon v. Federal Election Commission, the Court concluded that a federal law limiting aggregate annual contributions to federal candidates to $123,000 violated the First Amendment. This time, the limit was said to infringe the free speech rights of wealthy donors who wished to purchase influence for that price (something that Justice Kennedy calls mere ”access” and “ingratiation”). The now-unconstitutional limit of $123,000 was more than three times larger than the total annual wage of more than 100 million Americans.
Chief Justice Roberts once said that repeated 5-4 decisions tend to discredit the Court and make acceptance of its decisions less likely. He was right, and it is not only the general public who respond that way.
The extreme judicial aggression and obtuseness of the 5-4 majority in Citizens United has alarmed jurists across the country. In much the same way as Justice Stevens expressed in his Citizens United dissent, the growing torrent of dissents and judicial warnings are more than differences of opinion on points of constitutional law; they are calls to action to avoid constitutional catastrophe.
Dissenting in McCutcheon, Justice Breyer refers to our “grave problem of democratic legitimacy.” In the Montana state decision, Supreme Court Justice James Nelson blasted Citizens United: “Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people ‒ human beings ‒ to share fundamental natural rights with soulless creations of government.” After the 5-4 summary reversal in American Tradition Partnership, Nelson retired from the Montana Court and joined the Board of Free Speech For People, which is dedicated to overturning Citizens United and related cases. (Disclosure: I am a cofounder and board member of Free Speech For People.)
Sixth Circuit Court of Appeals Judge Richard Posner has said that the Supreme Court has made our political system “pervasively corrupt.” Leo Strine, the Chief Justice of the Delaware Supreme Court, has written an article called Corporate Power Ratchet, describing how the 5-4 majority has “eroded the ability of we the people to constrain our corporate creations.”
Yale Law School Dean and Federal Court of Appeals Judge Guido Calabresi states definitively that the hostility of the Roberts Court to the political equality of Americans will not last: “[Political equality] is something that is so fundamental that sooner or later it is going to be recognized. Whether this will happen through a constitutional amendment or through changes in Supreme Court doctrine I do not know. But it will happen.”
“It will happen.” A new 5-4 majority could do this. Better would be an end to reckless experimentation by narrow judicial majorities and a return to constitutional basics with a 28th Amendment that settles the matter once and for all.