Monday, January 25, 2010

The Roberts Court's Activist Blow for Corporate Speech

      The Roberts Court’s decision to free corporations to spend unlimited amounts of their money in congressional and presidential campaigns is an undisputed instance of judicial activism and one of the least defensible in terms of judicial procedure, historical experience or public policy.
      The Jan. 21 decision in Citizens United v. Federal Election Commission belatedly vindicates the conservative advocacy group's right to produce and distribute through video-on-demand the documentary hit piece Hillary: The Movie during the 2008 primary season. The FEC had barred the plan because some of the group’s financing had come from for-profit corporations. The corporate financing ran afoul of the so-called electioneering communications provision in the 2003 McCain-Feingold campaign reform law, which prohibited corporate or union financing of election-time campaign advertising on radio or TV.
      In their ruling, the five-justice majority went beyond striking down that recently enacted federal law to throw out a 20-year-old precedent and the century-old premise of campaign finance permitting greater restrictions on corporations than on individuals. The conservative bloc fully understood the appearance of judicial overreaching in their decision. Between them, Justice Anthony M. Kennedy in the majority opinion and Chief Justice John G. Roberts Jr. in a concurrence devoted more than 30 pages to deny the suggestion.
      The Court’s protestations that it had no choice may satisfy supporters of the decision, but less ideological observers are unconvinced. “There is such a long laundry list of other things they could have done,” says Barry Friedman, a law professor at New York University and author of the new book, The Will of the People, on the Supreme Court and public opinion. “They so clearly didn’t have to do what they did.”
      Justice John Paul Stevens listed some of those narrower ways to have decided the case. Citizens United originally had not asked to strike down the electioneering communications provision, but only to get out from under it. The Court could have found, for example, that the provision did not apply to video on demand or that it did not apply to a not-for-profit corporation such as Citizens United as long as it received no or only minimal corporate funding.
      As Stevens noted, that approach would have been consistent with Roberts’ own definition of judicial restraint. “If it is not necessary to decide more, it is necessary not to decide more,” Roberts has said and written both before and after his appointment as chief justice.
      In his opinion, Roberts acknowledges the quote, but insists that in this case it was necessary to decide more. He and the other conservatives reach that conclusion only by exaggerating the impact of the provision. Repeatedly, they refer to the McCain-Feingold provision as a “ban” on political speech by corporations.
      As Stevens notes, the provision only bars corporations (or unions) from using their own funds for campaign spending and only on radio or TV advertising close to an election. Even under the law, corporations or unions could form political action committees (PACs) to pay for election-time broadcast advertising. Kennedy is less than convincing in responding that forming a PAC is simply too much of a burden on political speech.
      With an exaggerated view of the breadth of the law, Roberts responds tartly to Stevens that judicial restraint is not the same as “judicial abdication.” The point is well taken. On numerous occasions, the Court has gone beyond a narrow decision in a case to issue broad rulings to enforce constitutional rights. One example, directly pertinent here, is New York Times v. Sullivan, the landmark 1964 libel decision safeguarding a First Amendment right to criticize public officials (and, later, public figures).
      In Sullivan, the Court could have held that the segregationist Alabama official who sued the Times over a political advertisement in the newspaper had no case because he was never named in the ad. The Court chose to go further and set a high, almost insurmountable barrier to libel suits by public officials. Undoubtedly, the justices were influenced by the larger stakes in the case. Sullivan’s suit — filed at the height of the civil rights revolution — showed how local juries in the South could chill national publications such as the Times in their coverage of the most important domestic issue of the day. The Times, in fact, was facing so many libel suits in Alabama that it withdrew its correspondents from the state for a while to avoid service of process.
      Citizens United reached the Supreme Court with no comparable threat to political speech at hand. Whatever the five justices may think, most Americans do not believe that corporations need more outlets for their political views. Neither history nor current events suggest that corporations lack effective avenues to make their views known and heard despite the century-old ban on direct campaign contributions to federal candidates, the bans on campaign spending in about half of the states, or McCain-Feingold’s targeted restriction on direct corporate financing of radio and TV ads.
      The effect of the Court’s decision remains to be seen. For now, the ruling is evidence that the conservative majority knows how to flex its muscles — and is willing to do so. Conservatives hope, and liberals rightly fear, that this will not be the last such occasion.


  1. Could corporations pre-this have taken out all the print ads they wanted?

    Why make just newer media off-limits?

  2. Was the majority of the Sullivan Court concerned with what "most Americans" would think of the ruling? Of course not. Nor should it have been concerned. The duty of a court is to declare the law, even against popular opinion. Thus, the only substantial question regarding the Citizens United ruling is whether the majority of Court stated the sense of the 1st Amendment correctly.

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