Citizens United vs. Federal Election Commission is an Egregious Exercise of Judicial Activism

January 26, 2010

The 5-4 conservative majority decision in Citizens United vs. the Federal Election Commission that struck many decades of law and precedent will likely go down in history as one of the Supreme Court’s most egregious exercises of judicial activism.

In spite of its imperative to rule on “cases and controversies” brought to the Court, to defer to the legitimate lawmaking authority of the Congress and other democratically elected legislatures, and to not allow simple disagreement with past judicial decisions to overrule precedent (stare decisis), the Roberts Court ruled unconstitutional the ban on corporate treasury funding of independent political campaigns.

The Court reached to make new constitutional law by ordering a re-argument of a minor case that itself raised no direct challenge to the laws and precedents that it ultimately overruled; dismissed the legitimacy of laws enacted over a century by Congress and state legislatures; equated the free speech protections of individuals and corporations in spite of countless laws and precedents that insisted on meaningful differences; and provided not a shred of evidence of new conditions or harmful effects that justified imposing their own ideological preferences on a body of settled law and social tradition.

The decision makes a mockery of Chief Justice Roberts’ pious statements during his confirmation hearing that he embraced judicial modesty and constitutional avoidance. His concurring decision to respond to his critics was defensive and lame.

Justice Stevens’ caustic dissent eviscerating the majority opinion penned by Justice Kennedy and the Roberts’ concurrence will likely be featured in legal journals and classes for decades to come.

To be sure, Citizens United is not the first sign that the Roberts Court is dead set on deregulating campaign finance. Previous decisions have pointed in this direction and more are certain to follow.

How as a consequence are campaign finance practices likely to change? And what options exist for those who seek to limit or counter the anticipated fallout?

An immediate flood of corporate spending in federal and state campaigns is possible but uncertain.

CEOs of some major corporations are wary of entering the political thicket in so transparent a fashion for fear of alienating customers and shareholders. Legal means already existed prior to this decision (PACs, communications within the corporate family, issue ads, contributions to trade associations such as the Chamber of Commerce) to play a significant role in elections.

Privately controlled companies led by individuals with strong ideological and partisan motivations are most likely to take advantage of the new legal environment but they could already act without restraint as individuals. Perhaps the greatest impact will flow from the threat of corporate independent spending campaigns for or against officeholders whose position on issue’s before federal and state governments is important to their corporate interests. This could corrupt the policy process without any dollars actually being spent. It will be some time before we are able to gauge the real impact of Citizens United.

In the meantime, Congress and legislatures in states with corporate prohibitions on their books will search for means of limiting or countering the ruling. Measures being considered are bans on political spending by corporations that have foreign ownership, government contracts or registered lobbyists or ones that have received federal bailout funds, strengthened disclosure, and requirements for shareholder approval of corporate political spending.

Most of these steps might be difficult to enact and even tougher to defend before post-Citizens United courts.

Over the longer haul, a more promising strategy is to fashion policy to encourage the proliferation of small donors to balance the political spending by corporations. In addition, politicians and citizen groups can speak and organize in a way that increases the costs to corporations who might otherwise avail themselves of this new opportunity. Large institutional and individual investors offended by the prospect of corporate treasuries being raided for political campaigns at the direction of top management might be persuaded to lead shareholder campaigns against such activities.

A radical conservative Supreme Court majority cavalierly decided to redress an alleged shortage of corporate political speech in American democracy. If, as I suspect, most Americans are bewildered and dismayed by that decision, their best recourse is to use their numbers and organizing energies to ensure that individual speech is not drowned by the trillions of dollars of corporate assets.