Supreme Corp.: Citizens United and the Undoing of Campaign Finance Reform

On the afternoon of September 12, 2005, the media were more concerned with the news that Michael D. Brown—or “Brownie,” of Hurricane Katrina “heck of a job” fame—had resigned than what was happening in the Caucus Room of the Russell Senate Office Building in Washington. Inside, John G. Roberts was listening patiently as twenty one senators attempted to explain the gravity of the responsibility with which he would be entrusted if confirmed as the 17th Chief Justice of the United States.

“Your prospective stewardship of the court,” Sen. Arlen Specter told Roberts, “could last until the year 2040 or longer.” Such longevity “would present a very unique opportunity for a new chief justice to rebuild the image of the [Supreme Court] away from what many believe it has become—a super-legislature—and to bring consensus to the court with the hallmark of the court being 5-4 decisions.” Sen. Tom Coburn, apparently so overcome by emotion that he began weeping, impressed upon Roberts that “a super-legislator body … is not what the court was intended to be.” He found solace, however, in the man before him: “I believe you indicate a more proper role for that of the judiciary.”

Today, some five years later, it is difficult to square the image of Roberts as a humble moderate, a fervent advocate of judicial restraint, or, as he then described himself, an “umpire” calling “balls and strikes,” with the reality of the Roberts Court’s actual decisions. In case after case, the chief justice, together with Justices Kennedy, Scalia, Thomas and Alito, has diminished, dismantled or disavowed precedent after precedent, leaving what was once well-settled law barely recognizable. Last week’s 5-4 decision in Citizens United v. Federal Election Commission, which overturns precedent in order to remove all restraints on what corporations may spend on election advertising, appears to be only the latest salvo in a long-planned and increasingly politicized struggle by conservatives to reimagine American law.

It is no surprise, then, that while The Wall Street Journal’s editorial board hailed the Court’s ruling, declaring that “[f]reedom has had its best week in many years,” The New York Times decried it as a “disastrous” decision that has “thrust politics back to the robber-baron era of the 19th century.” The case is notable not only for its breathtaking substantive outcome, but for the process by which both the majority and minority reasoned their opinions. The judgement, at 183 pages, is a mammoth one. Though the now-familiar conservative majority spoke in four separate opinions, the minority was represented solely by Justice Stevens, the court’s longest-serving member and leader of its liberal wing. He penned a 90-page dissent, described by one seasoned observer as “shot through with disappointment, frustration and uncharacteristic sarcasm.”

How to Make a Blockbuster

Citizens United was not supposed to be a big case. The story begins with a film, titled simply Hillary: The Movie and produced by a non-profit corporation with a conservative bent called Citizens United. Though itself a non-profit, the group accepted funds from individuals and corporations, both for-profit and otherwise. The movie, a 90-minute documentary, portrayed Hillary Clinton, then a candidate for the Democratic nomination for President of the United States, as “deceitful,” “ruthless,” and “cunning,” as well as “dishonest,” “reckless,” a “congenital liar,” and “not qualified as commander in chief.” As Dahlia Lithwick explains in Slate:

Citizens United released the film in six theaters and on DVD, actions not subject to federal regulation. But when they sought to distribute the film by paying $1.2 million to sell it through a video-on-demand service, the Federal Election Commission [FEC] contended that the film was no different from the kind of “electioneering communication” regulated under the McCain-Feingold campaign finance law. That was the 2002 statute that tried to limit the influence of big money on elections. If subject to the constraints of McCain-Feingold, the film could not be financed by corporate treasuries or broadcast within 30 days of a primary or 60 days of a general election. The federal court of appeals agreed with the FEC, finding that the movie could be interpreted as nothing but an effort to “inform the electorate that Senator Clinton is unfit for office.” Citizens United appealed.

At first, the issue before the Supreme Court was a narrow one: do federal campaign finance laws apply to a critical film about Hillary Clinton intended to be shown in theatres and on-demand to cable subscribers? The Court could have ruled, for example, that the relevant section of the Bipartisan Campaign Reform Act (BCRA), commonly known as McCain-Feingold, did not apply to Hillary for one or more of multiple potential reasons (six, some argue). Indeed, Ted Olsen, who served as counsel for Citizens United, acknowledged during oral argument that “there are all kinds of lines that the Court could draw which would provide a victory to my client” on the basis of a narrower as-applied challenge and without resort to a facial challenge, the latter having the effect of invalidating the entire section of the statute. Even Elena Kagan, the solicitor general, charged with defending the FEC, seemed to acknowledge this case was a doozy and all but invited the Court to limit the scope of the BCRA based on narrower grounds.

But then something strange happened. After oral argument was over, the Court announced that it wanted to hear from the parties again, but this time on a much broader question: should “the Court … overrule either or both Austin v. Michigan Chamber of Commerce [1990], and a part of McConnell v. FEC [2003], which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002”?

Constitutional Embrace

The floodgates were opened once Austin and McConnell, two seminal precedents that empowered government to impose limits on third party election spending, were up for grabs. In asking whether the two cases should be overruled, the Court was indulging a broad constitutional question: did the governmental limits sanctioned by those cases infringe a corporation’s free speech rights under the First Amendment? As Lyle Denniston of SCOTUSblog has noted, notwithstanding the limited focus of the initial case, “some members of the Court—the public does not know who, or exactly why—apparently began viewing the case as a more fundamental inquiry into constitutional questions about corporations’ rights of political speech.”

Conservative groups, together with some liberal organizations like the ACLU, cheered the Court’s willingness to reconsider what they saw as flawed precedents that unconstitutionally restricted corporate free speech. On the other side, most liberal groups recognized an “activist itch” at the Supreme Court and began to worry about Austin’s and McConnell’s demise and, with them, what they saw as their hard-fought achievements in the BCRA to limit the influence of Corporate America on the country’s elections. Ruth Marcus, writing in The Washington Post, explained it this way:

Imagine the 2010 election in a post-Austin world, with drug companies going after members of Congress who vote against their interests, or banks targeting lawmakers who backed tighter regulation. It’s not as if these industries lack political power now, but consider what kind of legislation would result if lawmakers had to fear that an industry they defied could spend an unlimited amount to defeat them at the next election.

In order to understand the significance of Citizens United, it is crucial to appreciate the broader context within which the case exists. A full discussion is not possible here, but suffice it to say that concerns about the financing of elections are a perennial issue in American politics. “Rising election costs had long fostered a sense in some quarters that spending was out of control, with too much time spent raising funds and elections ‘bought and sold,’ ” concludes a 2005 report from the non-partisan Congressional Research Service. Laws have sought to address the problem as far back as 1907 and the result today—that is, prior to Citizens United—was a complicated, and perhaps sometimes incomprehensible, regime meant to limit the influence of corporations, including trade unions, on the political process. Austin and McConnell, much like Harper v. Canada, 2004 SCC 33, each stood for the general proposition that the government had the power to restrain corporate spending on election advertising, though the rationales offered by the Canadian and U.S. high courts were somewhat distinct. Insofar as the instant case is concerned, though Citizens United could not, under the BCRA, fund Hillary from its corporate treasury, it did have other financing options, including spending money through a special segregated fund called a PAC.

The willingness to take on the constitutional question is the first significant point of departure between the majority and the minority in Citizens United. Both sides acknowledge the American doctrine of constitutional avoidance—essentially that resolving a case on broad constitutional grounds should be a last resort—still stands. The majority, however, takes great pains to illustrate why its application was not possible in this case. Notwithstanding Citizens United’s own arguments that the case can be resolved on narrower grounds, Chief Justice Roberts in his concurring opinion points to “a difference between judicial restraint and judicial abdication.” When resolution of constitutional questions is “indispensably necessary,” he concludes that “the court must meet and decide them.” (Richard L. Hasen of Loyola Law analyzes this claim in the broader context of the Roberts court.)

It would not be an exaggeration to observe that the minority sees the “judicial abdication” reasoning as disingenuous. For starters, referring to Justice Kennedy’s principal opinion for the majority, Justice Stevens writes: “Our colleagues’ suggestion that ‘we are asked to reconsider Austin and, in effect, McConnell’ … would be more accurate if rephrased to state that ‘we have asked ourselves’ to reconsider those cases.’ ” Stevens reserves some of his harshest language to make this point: “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Not only that, the majority, in refusing to decide the case on narrower grounds, “operates with a sledgehammer rather than a scalpel.”

The Anthropomorphic Corporation

Having decided to proceed with a full constitutional analysis, Kennedy, speaking for the majority, observes, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The key words there are “association of citizens,” for, by the Court’s reasoning, corporations—whether a mom-and-pop pizzeria or a multinational listed on the New York Stock Exchange—are but associations of citizens equally protected by the First Amendment as any individual.

Justice Sotomayor, at what was her first oral argument as a justice of the Court, asked counsel whether having “created corporations as persons … that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.” She received a non-answer then and the response in the majority’s opinion is similarly bare, for the connection is apparently axiomatic: “The worth of speech does not depend upon the identity of its source, whether corporation, association, union, or individual” (internal quotation marks omitted). (Fans of Stephen Colbert may take heart that he agrees.)

Given what it regards as the impingement of a fundamental constitutional right, the majority then applies strict scrutiny, which requires the government prove the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” Three rationales have been invoked (and recognized, to various extents, in Austin and McConnell) to justify a compelling state interest: (i) the prevention of corruption or its appearance; (ii) anti-distortion, or preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form”; and (iii) protecting shareholders from having to fund corporate speech with which they disagree. Unsurprisingly, the majority finds each of these rationales lacking. Why, to cite but one question raised by the Court, should Congress, if motivated by a specific fear of corporations with vast accumulations of wealth, ban speech by all corporations when 96% of them have fewer than 100 employees and 75% have revenues under $1 million?

There are important questions, but fuller discussion is best left to the decision itself; it is the overall thrust of the majority’s reasoning that is most worth noting here. At bottom, the Court sees inherent in the relevant sections of the BCRA a dark governmental power to censor the press, take down blogs and YouTube videos, and ban movies like Mr. Smith Goes to Washington. (An aside: As Eugene Volokh notes, Citizens United would appear to be the first reference to a “blog” in a Supreme Court opinion, and I suspect the first reference to YouTube as well.) In other words, in passing campaign finance reform, Congress has paved the way for an Orwellian future for America: “Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime,” Justice Kennedy observes. Notably, the word “ban” appears 29 times in his 57-page opinion. The Court’s strict adherence to constitutional principles would thus appear admirable for having saved the American people from themselves (or, perhaps more appropriately, from their representatives).

Conservative Cassandras?

The dissent, however, would have us discount the fears expressed by the majority, to put it simply, as “nonsense.” “The real issue in this case concerns how, not if, the appellant may finance its electioneering,” says Justice Stevens. “Neither Citizens United’s nor any other corporation’s speech has been ‘banned.’ ” The question is much simpler—and significantly less scary: “All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period.”

Stevens takes issue with essentially each one of the majority’s claims, including the significance of Citizens United’s corporate form:

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.

He concludes: “The Court dramatically overstates its critique of identity-based distinctions, without ever explaining why corporate identity demands the same treatment as individual identity. Only the most wooden approach to the First Amendment could justify the unprecedented line it seeks to draw.”

If the majority operates in black and white, Stevens then operates in grey. The theme throughout the dissent is that while the majority takes a “crabbed,” rigid and narrow view of the interests at play, the dissent is being deferential to Congress, flexible and realistic. “All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, that there is no such thing as too much speech,” Stevens reasons. “In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.” Needless to say, Stevens recognizes multiple compelling interests, as expressed in Austin and McConnell, and concludes that Congress has crafted a narrowly-tailored—and constitutional—limit on spending by corporations.

But This Case is Different

It seems fitting that Chief Justice Roberts and Justice Alito, both of whom were appointed by George W. Bush, a president who was fond of saying he admired a judge who “does not legislate from the bench,” would write a separate concurring opinion in Citizens United to defend their upheaval of the law as absolutely necessary. Roberts, Heather Gerken of Yale Law suggests, “felt the sting of Stevens’s dissent.” The chief justice’s concurrence, signed also by Alito, boils down to this: Stare decisis is important, but this case is different.

“Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function,” Roberts writes. “At the same time, stare decisis is neither an ‘inexorable command,” nor ‘a mechanical formula of adherence to the latest decision.’ ” I would hazard that the reference to an “inexorable command” is not unintentional, coming as it does from Lawrence v. Texas, where Kennedy, then speaking with the Court’s liberal wing, used the same language to justify overturning Bowers v. Hardwick, a case much maligned by liberals for its blessing laws that ban homosexual sodomy between consenting adults. (In this regard, both the majority and minority opinions in Citizens United make a habit of quoting past decisions by the author of the contrary opinion, as if to impress upon the reader that it is the other side which is being hypocritical.)

That both liberals and conservatives have invoked the “this case is different” rationale is perhaps one of the most abiding features of the Court’s modern jurisprudence. Roberts shrewdly invokes three cases, each of them dear to liberals, to support his contention that absolute fidelity to stare decisis is folly: Brown v. Board of Education (overturning Plessy v. Ferguson’s “separate but equal” doctrine), West Coast Hotel Co. v. Parrish (overturning Adkins v. Children’s Hospital’s voiding of minimal wage laws) and Katz v. United States (overturning Olmstead v. United States’ holding that warrantless wiretaps were not unreasonable searches). To that end, Roberts’ view that stare decisis is but a “principle of policy” is refreshingly forthright: “When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right” (emphasis in original).

The issue then, of course, is when the balance tips in favour of overturning precedent. One would think, as the minority suggests, that something more than a mere change in the composition of the Court—an evolution in societal attitudes or changed circumstances in respect of the subject matter, perhaps—is necessary if stare decisis is to have any meaning. And this is where the majority’s refutation of the applicability of the doctrine in this case crumbles. Quite simply, what has changed since Austin and McConnell? Stevens’s answer is particularly biting: “In the end, the Court’s rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court.”

What’s Next?

Sandra Day O’Connor, who retired from the Court in 2005 and was replaced by Justice Alito, made light of Citizens United in a speech Tuesday. “Gosh, I step away for a couple of years and there’s no telling what’s going to happen,” she told an audience at Georgetown. But there was no mistaking her assessment of the judgement’s impact: O’Connor, who jointly with Stevens authored one of the majority opinions in McConnell, warned that Citizens United will lead to an “arms race” in judicial elections and be a “problem for maintaining an independent judiciary.”  Because state courts handle most personal-injury and other civil cases, the biggest impact may be felt in their judicial elections as corporations seek to protect their financial interests.

Others observers predict a more widespread “political tsunami,” with increased spending across the board in the 2010 election cycle. That said, not everyone anticipates that Corporate America will take advantage of its newly-affirmed rights—or, perhaps, not immediately. President Barack Obama, who concluded that Citizens United gives “big oil, Wall Street banks, health insurance companies” the power “to drown out the voices of everyday Americans,” is frantically working with Democrats to counter the decision, ostensibly recognizing corporation-bashing can become a populist arrow in their electoral quiver heading into November. In contrast, Republican National Committee Chairman Michael Steele sees merit in going the other way, arguing “there is still more work to be done” to eliminate other restrictions on “the free exchange of ideas.”

What Congress will or will not do aside, it is clear that Citizens United will not soon be forgotten. At the conclusion of the Court’s 2007 term, Justice Breyer, who joined Stevens’ opinion in this case, read aloud from portions of his dissent in Parents Involved v. Seattle, which similarly stirred emotions among both conservatives and liberals, remarking: “It is not often in the law that so few have so quickly changed so much.” Then, as now, it would seem the sentiment can only begin to express the naiveté of the hopes expressed and paucity of the promises made on that afternoon in September, 2005.