This week’s post is a bit longer than usual but bear with me – it deals with the most important Supreme Court decision in at least a generation. This is a review of a truly epic essay written by legal analyst Jeffrey Toobin in this month’s New Yorker, entitled “Money Unlimited, How Chief Justice John Roberts orchestrated the Citizens United Decision“. The essay will be relevant for years to come, and although it’s a bit long (just under 10,000 words), I highly recommend a full read of the original.
The Citizens United ruling is the latest in a back-and-forth struggle over campaign finance laws that has been waging for over a hundred year. For decades, the Supreme Court has been accused by conservatives of judicial activism – legislating from the bench by overturning laws created by democratically elected legislatures. According to Toobin, the tables completely turned in 2010 when a more conservative Court went out of its way to overturn nearly a century of Court precedent and federal law. But first, a little background.
In 2002, with bi-partisan support, Congress passed the McCain-Feingold campaign finance laws which prohibited corporations and unions from funding campaign ads in the leadup to an election. The justification was that candidate ads (in support of an individual or party for an election) were different from issue ads (in support of an idea in general). The latter was still permitted under the law. Essentially, a corporation could run as many adds as it want on a specific issue (abortion rights for example), but the minute it endorses or opposes a candidate just before an election, it is breaking the law.
In 2003, the law was challenged in the Supreme Court (McConnell v. FEC) and was upheld. In 2007, it was challenged again (FEC v. Wisconsin Right to Life), and survived again, but suffered a few wounds that watered down its mandate. McCain Feingold was to be the main target of the Citizens United case.
Inspired by the success of Michael Moore’s Fahrenheit 911, Citizens United, a conservative non-profit organization attempted to air a documentary, Hillary: The Movie, just before the 2008 Democratic presidential primaries. The FEC found the documentary to be “electioneering communication” and forbade it. To the Supreme Court they went.
The argument offered by Citizens United was very clever. They saw no problem with the McCain-Feingold law but instead argued that Hillary: the Movie was merely a documentary, protected as free speech, and was not, a campaign ad. What was at question, supposedly, was not the constitutionality of an existing law, but the nature of a small and obscure documentary. The decision came down to two points:
- Corporations and individuals have the same 1st Amendment right to free speech. If the government can ban a documentary, then what’s stopping it from banning a book? A documentary is basically a form of free speech, just like a book, and we would never prohibit a corporation or group from publishing a book.
- Money is speech. In the 1976 case of Buckley v. Valeo, the Court equated free speech with spending money because “every means of communicating ideas in today’s mass society requires the expenditure of money”.
In spring 2009, the Court ruled 5-4 that the law does not apply to the documentary…almost. In June of that year, the Court announced that it would hear the case again, but this time, to decide whether or not to overturn previous decisions. The Court does not announce that it is “considering” overturning precedent unless it has already made up its mind. Without being asked to do so, the 5 Justices were determined to rule not just on the small and obscure documentary, but on the constitutionality of the entire law and campaign finance regulation as a whole. In January 2010, to nobody’s surprise, the Court ruled 5-4 that McCain Feingold was unconstitutional.
In his majority opinion, Justice Kennedy wrote, “If the First Amendment has any force…it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Corporations and unions can spend as much money as they want on political campaigns. More money in politics – that’s what was missing!
For the sake of brevity, I’ll let Justice Stevens, who retired from the Court before the final decision on Citizens United was handed down, speak for me:
“Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law…The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare…Unlike our colleagues, they had little trouble distinguishing corporations from human beings.”