Now that the first major election post-Citizens United has passed I thought it would be worth opening the floor to some discussion of everybody’s view on whether Citizens United was a good decision both as constitutional law and in practical application during the election.
I wrote a piece for Political Realities before the decision was issued that was very critical of the decision by the Court to rehear the case a second time. John Roberts asked both sides to prepare to address questions that vastly expanded the scope of the case. Roberts was well known for an earlier comment concerning “the cardinal principle of judicial restraint – if it is not necessary to decide more, it is necessary not to decide more.” Citizens United was clearly such a case – it wasn’t necessary to decide more but Roberts wanted to anyway. Surely this is the very definition of judicial activism so decried by the GOP during the Bush years. The issues were whether pay-per-view equals television for purposes of conformity with the campaign advertising restriction of the McCain-Feingold law and whether the law covered non-profits. The justices were prepared to rule on the case following the initial hearing in the spring of 2009 when Roberts decided to postpone the decision and asked for a new hearing where both sides would address all elements of McCain-Feingold and other campaign finance laws then in effect. This was a stunning decision and clearly one in gross violation of his “cardinal principle.” Given the final decision it’s also one that immediately overruled decades of established precedent.
Last week Justice Alito, speaking before the Federalist Society, defended the decision. Here is a part of the story from the AP:
He said opponents of the 5-4 decision have conducted an effective, but misleading, public relations campaign by stressing that the court extended free speech rights to corporations.
He even praised opponents’ pithy cleverness, noting such bumper stickers as “Life Does Not Begin at Incorporation.”
But Alito rattled off the names of the nation’s leading newspapers and television networks, all owned by corporations and possessing acknowledged rights to print and say what they wish about politics and government.
“The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely, media corporations,” he said. “Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.”
I read that last sentence a few times and I just don’t follow his logic. Clearly the Founders did envision certain “privileged” voices by specifically including freedom of the press in the First Amendment. The very absence of extending the “freedoms” to non-press corporations can easily be construed to mean that other corporations did not enjoy those rights. In fact, the argument that the constitution was written by and for “We the People” and does not give to corporations the same rights as it gives to individuals, seems to me so self-evident that it hardly bears repeating – except of course for the nagging fact that corporate free speech is, and has been, the law of the land for well over 100 years. In fact, Justice Kennedy, in his Citizens United opinion, noted that very fact — he was citing extensive precedent to support the continuing right of corporate free speech. He further wrote, “The Government has muffled the voices that best represent the most significant segments of the economy.” This “muffling” refers to the 100 plus year old law that restricts corporate speech in the political arena. Corporations had free speech in all areas except for political and governmental affairs. So at one and the same time Kennedy established the need to respect the precedent of corporate free speech while then abolishing the precedent restricting that speech on political issues.
I see the issue completely from the opposite side — I find it difficult to understand how dedicated “originalists” like Thomas and Scalia can find in the Constitution grounds for corporate free speech of any kind other than freedom of the press. Of course giving corporations free speech makes complete sense (they need to able to defend themselves from public attacks or unfair allegations) and I absolutely agree with that finding; but there are plenty of restrictions on free speech and I definitely think limitations on corporate political speech should be included along with libel, slander, yelling “fire” in a movie theater, etc.
Corporate free speech was restricted from politics because of the big money machine excesses of the late 19th and early 20th century. It’s hard to think that the propensity of corporations, labor unions, PACs, etc to attempt to influence politicians and elections has diminished in any way since those days. The incredible amount of money poured into the recent election seems ample proof of that assertion. Whether you think the law restricting corporate participation in campaigns was properly changed or not, the impact of Citizens United strikes me as having been detrimental to the democratic process. Worse still are the incredible sums spent by outside influences on federal judicial elections – that’s simply an outrage.
Congress has no ability to legislate an override of a Court decision that is based on an interpretation of the Constitution. Obama may have to replace Ginsburg during his second term but it doesn’t seem either Kennedy, Scalia, or Thomas are about to step down so Citizens United is likely to be the law of the land in 2016 as well. If a Democrat wins the presidency at that time, however, when Kennedy and Scalia both turn 80, then the long term future of the Court could change sharply and take Citizens United down.
What do you think?