Citizens United: The Problem Isn't the Law, It's the Court

Original Link: http://www.huffingtonpost.com/doug-kendall/citizens-united-the-probl_b_431989.html

By Doug Kendall

Progressives may have thought the victory of Scott Brown in Massachusetts earlier this week was bad news, but today's Supreme Court 5-4 ruling in Citizens United v. FEC may ultimately prove far more devastating.

That is because today, the Court's conservative majority re-wrote the Constitution to give corporations -- never mentioned in the Constitution -- the same right to influence the electoral process as 'We the People.' As the NYT's Adam Liptak explains, "Sweeping aside a century-old understanding and overruling two important precedents, a bitterly divided Supreme Court ... ruled that the government may not ban political spending by corporations in candidate elections." The justices did what many progressives feared for months it would do: hold that long-standing restrictions on corporate campaign spending violate the First Amendment.

The Court's ruling could transform our electoral politics. During 2008 alone, Exxon Mobil Corporation generated profits of $45 billion. With a diversion of even two percent of those profits to the political process, this one company could have outspent both presidential candidates and fundamentally changed the dynamic of the 2008 election.

As overwhelmingly demonstrated by Justice John Paul Stevens' breathtaking dissent -- read aloud from the bench and joined by Justices Ginsburg, Breyer, and Sotomayor -- today's ruling is startlingly activist and plainly contrary to constitutional text and history. Two centuries ago, the Supreme Court under Chief Justice Marshall first recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them. Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone. In a profoundly wrong interpretation of the First Amendment, the Court granted corporations the right to drown out the voices of individual Americans in our Nation's elections.

Americans must take away the right lesson from this devastating defeat. The law itself was not the problem here; the statutory and case law, and the Constitution itself, very much supported the opposite outcome. And while progressives should feel free to pursue creative ways in the wake of the decision to limit corporate efforts to influence electoral politics (boycotts, stockholder protests, etc.), we should not kid ourselves about an effective legislative fix, as Rick Hasen points out. The Court sweepingly rejected limits on corporate electioneering expenditures on constitutional grounds. The only ways to truly "fix" the Court's ruling in Citizens United are to change the Constitution to expressly permit restrictions on corporate campaign spending or fight a long-term battle over the future of the Supreme Court, eventually producing a ruling overturning today's profound error. Only the latter option is plausibly successful.

A progressive long-term strategy to put the Supreme Court back on track is particularly fitting, given that today's ruling is the result of a long-term conservative plan to change the Court to serve corporations' interests. As explained in this discussion draft of a forthcoming report entitled A Capitalist Joker: Corporations, Corporate Personhood and the Constitution, the roots of today's decision in Citizens United go back at least as far as a 1971 memorandum written by Lewis Powell to the Chamber of Commerce, urging the Chamber to focus on a "neglected opportunity in the courts," and noting that "the judiciary may be the most important instrument for social, economic and political change."

Justice Powell was nominated to the Supreme Court that same year and in 1976 he authored a 5-4 ruling in First National Bank of Boston v. Bellotti, an opinion which first introduced many of the ideas about the First Amendment seized upon by the majority today. His memo contributed to the rise of the conservative legal movement, a forty-year period in which conservative legal activists have fought tooth and nail to move the federal judiciary sharply to the right.

Progressives have seen the profound stakes in this battle before, most notably in the Court's ruling in Bush v. Gore. Like that ruling, Citizens United blows away any notion that conservative judges, who profess to be "originalists" and "umpires," are in fact faithful to our Constitution's text and history or bound by reasoned precedent.

Courts will end up deciding whether just about every part of the progressive agenda stands or falls. Progressives need to demand, louder than we are now, judges who will follow our Constitution's text and history and honor the Constitution's progressive promise for '"We the People." Sadly, today we have a startling new reminder of just how much this fight matters.