an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Citizens United Redux: or What "Democracy" Means for our Five Republican-Appointed Justices
People are discussing the Arizona immigration ruling and, once again, Citizens United and its effect on our democracy.
Today, without oral argument or briefing, the Supreme Court handed down American Tradition Partnership v. Bullock, a one-page decision reversing the Montana Supreme Court and striking down a 100 year old law limiting corporate spending in Montana elections. The Court--or rather the same five Justices appointed by Republicans who brought us Citizens United--held that Citizens United squarely forbids states from banning corporate spending on elections--whatever the facts in that state. The dissenters--or the four Justices appointed by Democrats--would have heard the case to reconsider Citizens United, noting that expenditures can be as corrupting as direct contributions, and noting the huge flood of corrupting corporate money in the 2012 elections.
This decision may show that the Supreme Court will not defer to the fact-finding of legislatures. The Court is instead determining its own facts. Those facts: no, no, expenditures do not give rise to corruption or its appearance. The first fact is about how elected officials react to expenditures. The second fact is about how Americans view the millions spent by SuperPACs and huge corporations. The Supreme Court's view on both of these facts is probably totally detached from the experience of elected officials and average Americans, many of whom think their government is corrupt.
But that can't be right. The Montana decision goes into great detail about how out of state corporations and "copper kings" would buy and sell the government through expenditures. Those facts were swept aside in a page. (You should read for the riveting, corrupt soap-opera-like drama alone (e.g., pages 14-25).)
Instead, what's going on is something different.
Either (1) the five Republican-appointed Justices are completely unprincipled and simply will do whatever it takes to help Republicans gain power and enact a pro-corporate agenda. In a widely read Atlantic piece, James Fallows just accused the five Justices--Kennedy, Scalia, Thomas, Roberts, and Alito--of being part of a judicial "coup" running back to Bush v. Gore, which included three of these justices and two replaced by Roberts and Alito.
Or, to be more charitable, the Supreme Court might actually have a principle. The Supreme Court (2) might not care about the facts (as it doesn't) because it simply believes that corporations should be part of our democracy. They should be able, as a matter of right, to buy and sell candidates who agree and disagree with them, just as individuals should be allowed to vote for or against candidates. They don't think there's anything wrong with corporate involvement in campaigns. Justices on the infamous Lochner court probably didn't second-guess the health conclusions of the laws; they believed the laws conflicted with liberty.
From both Citizens United and this decision, it seems our Republican-appointed five man majority defines liberty and democracy to require unlimited corporate spending on elections--whatever the facts, whatever the outcomes (though knowing those outcomes favor Republicans and favor donors who fly Justices to nice events and fund their wives' organizations). (For more on this point, see Joshua Cohen's 2011 Dewey Lecture.)
This decision raises one other point: many hopeful activists have proposed ways around Citizens United they think would be upheld. That is probably nuts. The five-member majority will not let that happen. If a state Supreme Court, upholding its own legislature, on a hundred year law, on a colorful and deep record, to keep out the corruption of out-of-state corporations, is struck down without ceremony, I can't see many laws getting through these guys.
The Court has even undermined public financing and public matching funds more than most people will admit. If a state makes public financing available for one side, the state could not increase the amount provided or the matching funds formula based on the money spent by the other side or the supporters of the other side. These limits constrain the effectiveness of public funding; indeed, they effectively make it impossible to match the resources of those backed by billionaires willing to write huge checks.
I have written elsewhere that I think Obama should make the Supreme Court--and particularly Citizens United--a key plank in his campaign. If the public knew more about the five Republican appointees to the Supreme Court--e.g., that their current Chief isn't Thurgood Marshall and Harry Reid--maybe they would be more excited about voting for Obama and for Senate Democratic candidates, and against their opponents.