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What Citizens United Tells Us About the Court

By John Tabin on 1.21.10 @ 5:47PM

I haven't finished reading today's Supreme Court ruling in Citizens United v. FEC (the opinions take up 183 pages), but from a quick skim it looks like there's a feast of fascinating stuff in it for conlaw nerds, telling us a lot about both the state of constitutional analysis on the Court and the destinctive styles of various justices.

Stevens's dissent attempts to make an original understanding argument that the founders didn't like corporations, and while Scalia's concurrence very effectively hammers away at Stevens's analysis it seems significant that we've gotten to the point where a liberal justice is even attempting to argue in originalist terms. Scalia's concurrence is joined by Alito and joined in part by Thomas, but is not joined by Roberts, who files his own concurrence, dealing with stare decisis and judicial restraint. That's an interesting comment on what Roberts cares about; he's a conservative minimalist who is reluctant to weigh in on originalist arguments. Alito joins both Scalia's dissent and Roberts's (he's the only one who joined both), showing an interest in both originalism and precedent. (Scalia is known to care more about precedent than Thomas does, but I haven't read enough of Roberts's opinion to guess why Scalia didn't join it.)

Thomas, always unafraid to stake out his own path, files a lone dissent on the part of the majority opinion which upholds McCain-Feingold's disclosure requirements; Thomas argues that anonymous speech is constitutionally protected. On a conference call today with Citizens United's President David Bossie and General Counsel and VP Michael Boos, I asked what they made of that; Boos said they agree with Thomas's analysis, but they were more concerned with the burden that the disclosure requirements place on short ads -- a ten second ad requires four seconds for disclosure. Boos said the court didn't really address this problem today, but may in the future.

There's lots more on the case at The Volokh Conspiracy (not surprisingly, given Eugene Volokh's prominence as a First Amendment scholar). One of the lighter things noted over there: This is the first time the word "blog" has appeared in a Supreme Court opinion.

View all comments (21) | Leave a comment

phil| 1.21.10 @ 5:54PM

This ruling is unjust and a direct concentration of power into the hand of corporations. For the last hundred years lawyers have been stripping the rights of citizens and giving power to those that already have great influence. This is a huge problem and virtually will make silent the voices that don't have massive backing form corporate interests.
At the root of this problem is corporate personhood. The Citizens United case is just one more ruling that strips the rights of people and adds to the power of corporations. There is a group that is mobilizing RIGHT NOW to amend the constitution and change the face of this deplorable decision. To sign the online petition and learn more about the movement, check the website:

http://movetoamend.org

Liberal Reader| 1.21.10 @ 6:01PM

Well, one thing's for sure:

The conservatives on the Court today defended the ability of the average person to have a voice in government.

What a victory for the "little guy"!

You know, I've often resisted the notion that conservatives had the best interests of the "average guy on the street" in mind.

What a fool I was!

Conservatives really ARE all about "Joe Sixpack." And there's no question: Joe the Plumber will have a better ability to petition his government tomorrow than he did yesterday!

Sure, the most giant international corporations will be giving millions more than they already do to Congress.

But what kind of cynical person imagines that these corporate gifts will have any effect on how Congress writes laws!

No, sir. Today is a victory for the little guy! A victory for the middle class!

This is DEFINITELY what Thomas Jefferson had in mind!

Congratulations, America! And have a NICE day!

Warrior| 1.21.10 @ 6:21PM

I guess it's better to have hundreds of millions of dollars from unknown entities contributing to a Communist running as a moderate.

Truth to Power| 1.21.10 @ 7:16PM

"What a fool I was!"

The Little Reader is not ready for the past tense. He must give up the fascist notion that he decides who gets to have free speech before he moves out of the fool category.

Little Reader-Take a break from political stuff for lets say a month and see if you can achieve some kind of mental stability. You're cracking up and it is going to get a lot worse before it gets better. You can't handle the pressure of your fantasy coming apart.

Lullaby's, Legends and Lies| 1.21.10 @ 7:35PM

Liberal Reader is a guy? I didn't know that, I always thought, she was a chick!! My bad!!

LR: It's all about "Free Speech", don't you know? Don't you like free speech? I do!! So it's going to be up to you, from now on, to figure out, which side is telling the truth, and then you can form your "own" opinion, don't you think you can handle that? I can!! And about those "evil" corporations, don't be scared of them, they're very big, and slow moving, so they can't sneak up on you at night, without you hearing them coming. You'll be okay.

Liberal Reader| 1.21.10 @ 7:39PM

How is MONEY speech?

Explain it to me. Why does giving a Congressman a bag full of cash deserve EQUAL protection under the Constitution to standing up in a town hall, as a man, and SPEAKING one's political views?

I don't get it. Clearly you are all sages, and wisdom was born with you.

Enlighten me.

I don't object to ANY actual human being's right to freedom of speech. But how does this translate in allowing massive corporate or union donors from PURCHASING the government?

S.L. Toddard| 1.21.10 @ 8:26PM

LR, I myself am skeptical about this decision, as I fear we have already gone way too far down the corporatist path. Corporate influence in Washington needs to be lessened, not strengthened, and power in Washington needs to be dispersed, not further centralized in the hands of Washington's corporate masters.

But none of that is really relevant, is it? The question at hand is whether the decision is constitutionally sound. I recommend the Volokh site (as did the author of this piece - see below), and I'm waiting to see what Greenwald has to say as well. My first impression is that the decision is rooted in sound constitutional principle, as much as I dislike the ramifications.

And not to take a dig at you, but if the left hadn't fought for a century to usurp the power of the people and the states and centralize it all in Washington it would not be so susceptible to corporate influence. Once again I ask: why are there no left-decentralists to join us on the right, to re-establish a federalism wherein Massachusetts may have its socialist paradise, while Montana has a libertarian one and George a southern conservative republic?

http://volokh.com/

S.L. Toddard| 1.21.10 @ 8:27PM

should read "Georgia", not "George"

Dan| 1.21.10 @ 6:11PM

Two idiots got here first. Free speech is for everyone, all the time. Since these two brilliant people can't think or haven't been told any other solution to this problem, they have to amend the Constitution to get the results they want. How about TRANSPERANCY? How about the voters get to see who has given how much money from where. Or would that mean democrats can't cheat.

astonerii| 1.21.10 @ 6:57PM

I read somewhere where this might actually cut back on lobbying efforts, as now corporations will be able to have a direct voice as opposed to a second hand voice in the form of lobbyists and graft that they hand out.

Liberal Reader| 1.21.10 @ 7:54PM

I want to be clear here:

Are you actually celebrating this decision because you think YOUR freedom of speech has been somehow enhanced now that any bank, corporation, or union can give unlimited amounts of cash money to Congress people?

You don't think these millions and millions of dollars are going to affect public policy, in effect, purchasing votes?

If MONEY is speech, then MORE money is MORE speech!

So you're saying that you deserve less speech than the banks and corporate financiers who just ripped you and your fellow citizens off to the tune of hundreds of billions of dollars and caused the largest financial crisis since the 1930s?

Six Foot Rabbit| 1.21.10 @ 9:26PM

Justice Stevens is a great lawyer past his prime. This showed terribly in the Massachusetts v EPA decision in which he refused to accept the idea of Agency judgment, and ruled carbon dioxide is a pollutant on literal terms. Hopefully Climategate will convince him to stop blaming George Bush. As to corporations, I have to wonder how originalism really has much to say, given that in 1789 there sure were not many, and those that were were often from some English King's edict.

philfl63| 1.21.10 @ 9:29PM

Where in the Constitution did the Founding Fathers address campaign contributions? Yes, I know there is precedential law, but where does the Constitution address campaign financing or campaign law upon which these "laws" were found constitutional? In the Founding Father's day, men running for public office were expected to provide drink refreshments e.g. beer, wine, punch for the voters. The candidates would try to provide nice spreads in hopes of "buying" the good will of the voters. Maybe we should go back to that system instead of unlawfully stifling campaign contributions. It is a free country. The only people concerned about campaign contributions are the incumbent corruptocrats who want to shut out any competition. The corrupt legislators rig the system to their advantage and woe be to the newcomer who trys to run for office. BTW, corporations are not evil.

Liberal Reader| 1.21.10 @ 10:38PM

No one. Not one of you can explain the reasoning that equates money with speech.

You can't not because you're stupid, but because it simply can't be done.

Money is NOT speech. I refuse to accept what is plainly false.

If executives at Bank of America want to exercise their right to freedom of speech, let them write a letter to the editor; let them write a book; let them stand on the streets in the cold and wave signs, like you Tea Partiers.

But do NOT let them hand millions of dollars to a candidate so that candidate votes in their favor no matter what the consequences to the public good.

If my way isn't what the founding fathers had in mind, the founding fathers were wrong. But I'm pretty goddamn sure James Madison could never have DREAMED of what corporate money is capable of in our time. If he was, I'd like someone to prove it.

S.L. Toddard| 1.22.10 @ 8:20AM

"Not one of you can explain the reasoning that equates money with speech."

I can. It takes money to run a press, the freedom to do which cannot be abridged by government. That is more or less the argument - that government cannot abridge that freedom whether it is being exercised by an individual or a corporation of individuals.

Are you asking for someone to explain how campaign contributions can be considered "speech"?

fatcat256| 1.22.10 @ 12:27AM

I can explain it, LR, so shut up about evil corporations and sit down.

"Hard money," which is what corporations are now allowed to donate unlimitedly, is designated for a specific purpose and must be used towards it, or else it's illegal. ("Soft money" has no strings attached.) This purpose is, most of the time, advertising. Effectively, a corporation can advertise through a candidate - or now independently for a candidate - and that is in fact speech as protected by the 1st Amendment.

LR, if you truly understood what makes the U.S. economy as powerful and wealthy as it is, you would not be so hasty to decry corporations. You clearly want to kill the golden goose by allowing politicians to be elected with that goal in mind. Corporations, being made up of, usually, public shareholders, ARE a part of society and deserve to be able to protect themselves against greedy drones.

I'm sure you will never complain about the fact that incredibly wealthy UNIONS now play by the same rules. Because UNIONS are the good guys and should always be trusted to decide what's best for America.

Democrats had better watch out in this year's election cycle, because Big Business - and especially the BANKS - are going for blood!

Liberal Reader| 1.22.10 @ 6:56AM

fatcat --

Are you saying "the golden goose" of the American corporation (as fine a metaphor as I could ever come up with) would be "killed" unless it was allowed to give millions to Congress to buy votes?

Where did I ever say corporations were "evil"?

I just don't think they deserved a PRIVILEGED voice in government that drowns out the voices of you and me.

If Exxon wants to petition its government, too bad.

If people who work for or own Exxon want to petition their government, I'm all for it.

Let them petition their government. Let them stand on streetcorners holding signs; let them write pamphlets and letters to the editor.

But why should they be able to hand bags full of cash money to senators in exchange for votes.

In Rome, when people did that sort of thing, they used to sew them up in bags with wild animals and hurl them in the rivers. Would that we had such a high esteem for responsible governance today!

Ozwitch| 1.22.10 @ 5:06AM

What this means is that George Soros no longer has a monopoly on the ability to make enormous contributions to political campaigns by either 527ing them, sourcing money from foreign donors or buying up media networks.

Liberal Reader| 1.22.10 @ 7:22AM

The idea that corporations are identical to citizens is absurd on its face.

Corporations cannot vote or hold office. Corporations can be owned and directed by non-citizens.

But with this activist decision, the "conservatives" on the Supreme Court have wildly expanded their power to buy influence and purchase votes.

Again, the notion that money is speech is false. The notion that corporations are citizens is equally false.

If you care about good governance, and you care about your OWN ability to petition your government, you will oppose this reckless decision. It was wrongly decided; it makes a mockery of what Roberts claimed would be his "judicial modesty."

Ozwitch -- if you think this is about Soros, you're a bigger fool than you probably think I think you are. We're talking about corporations with a combined war chest of 20 trillion dollars BUYING the votes of people in Congress. That is NOT a recipe for good governance; that is NOT the way the government serves the public good; that is NOT what the Founding Fathers -- who never could have imagined the influence that international corporations have on Washington -- had in mind.

This decision is a disgrace.

Liberal Reader| 1.22.10 @ 7:40AM

THINK about it:

As a result of this decision, a corporation owned by people in BRAZIL or CHINA or SAUDI ARABIA (yes! those evil Muslims do own corporations!) will now be able to have more power to petition your government. The Court has increased their ability to BUY votes.

As for originalism, you can forget about it. The 18th century never saw of or heard of or could have dreamed of the disparities we're talking about here. The corporate dollars involved in our time are many MILLIONS of times greater than what citizens can muster. That just simply is NOT what the Founders had in mind.

Paul McKnight| 1.23.10 @ 2:44PM

From Stevens's dissent:

"In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races."

The laws--as they stood--did not 'silence' the voices of corporate entities or prohibit them from participating in the political process ("issue" v. candidate ads, the 30-day limit, the ability to contribute to PACs, etc.). The laws REGULATED such participation--in the interests in limiting the ability of corporations to overwhelm the voice of the citizen. The Court seriously over-reached.

Wish we would stop trying to figure what "the Founding Fathers intended" and stuck what made common bloody sense.