Bad Judgment

Original Link: http://www.newyorker.com/online/blogs/newsdesk/2010/01/campaign-finance.html

By Jeffrey Toobin

The basic ruling in yesterday’s five-to-four Supreme Court decision was straightforward and, in many ways, predictable. Chief Justice John G. Roberts, Jr., and his four conservative colleagues almost invariably rule in favor of corporate interests, and the Citizens United case was no exception. The Court ruled that corporations (and labor unions and other organizations) have the right, under the First Amendment, to participate in political campaigns by spending as much money as they want on behalf of political candidates. In other words, companies can produce commercials and buy time to support or oppose candidates for office.

Two thoughts. First, Republicans will benefit, of course. Corporations have vastly more money than unions, and corporations by and large prefer to support the G.O.P. But the spectre of Exxon buying time to support Barack Obama’s opponent in 2012 seems unlikely to me. Presidential campaigns are high-profile and generally well-funded; Exxon (or its ilk) would probably not make much difference—and likely draw a consumer boycott with a controversial choice.

The much bigger implication of the decision is likely to come in judicial elections. In the states that elect judges (about two-thirds of them), most voters pay relatively little attention to the races, but the contests, especially for the state supreme courts, tend to be vicious and expensive. Corporate interests often have a huge stake in the outcome, because most personal-injury lawsuits and other civil cases are handled at the state level. The whole notion of electing judges is tawdry and awful; Justice Sandra Day O’Connor has devoted a great deal of energy, during her retirement from the Supreme Court, to urging states to move to appointive systems. Corporate freedom to dump untold amounts of money into these races will make bad systems worse.

Second, it has long been a staple of conservative thought to criticize “judicial activism”—the practice of unelected judges imposing their own policy judgments to overrule the will of the people’s elected representatives. But it is hard to imagine a more activist decision than the Citizens Union case. Congress passed the McCain-Feingold law, and President George W. Bush signed it, in the knowledge that the Supreme Court had repeatedly blessed restrictions on corporate political activity. But Justice Anthony Kennedy’s opinion blithely overturned Court precedent, and rejected the work of the elected branches—all in service of the bizarre legal theories that (1) corporations have the same rights as human beings, and (2) spending money is the same thing as speaking. This was judicial activism of the most egregious kind. Indeed, it wasn’t as much a judicial opinion as it was Republican talking points.