Thursday, January 21, 2010

An initial take on Citizens United

Heather K. Gerken

Citizens United has ended with a bang, not a whimper -- with the Court explicitly overruling two of its own decisions, angry dissents, defensive claims about the moral high ground, and some quite pointed barbs directed at fellow Justices and the Solicitor General.

As Nate Persily notes below, as a practical matter, the opinion is just one more step in the direction the Court was already heading. Earlier cases had already substantially limited Congress's power to restrict independent corporate expenditures, and all Citizens United did was take the final step. As a symbolic matter, however, overruling Austin -- the darling of reformers – will send shockwaves through the reform community.

In my view, the real significance of the case lies in what the Court said Congress can do going forward. The Court severely limited both the arguments and the types of evidence Congress can invoke when it regulates in the future. In doing so, it overruled other precedent without saying so. Austin, it seems to me, was a goner anyway. The real hope for future campaign-finance reform turned not on Austin¸ but on what constitutes corruption and what evidence Congress can gather to show it exists. The Court has now cut back substantially on both fronts. While that part of the opinion won’t get nearly as much press, it's the part of the opinion that will matter most in the future.

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