There's more to criticize in the opinion. Should the American people, through Congress, be able to decide that the vast economic inequality that comes with our wonderful capitalist system should not translate into vast political inequality? Justice Kennedy seems to believe that this would lead to the imminent decline of our democracy. Money is speech; speech may not be suppressed. But the last time I checked, the U.K. and Canada were vibrant, functioning democracies, despite the far more stringent limits they place on spending in their elections. Finally, Justice Kennedy's single horrible—his specter of blog censorship—sounds more like the rantings of a right-wing talk show host than the rational view of a justice with a sense of political realism.
What is so striking today is how avoidable this political tsunami was. The court has long adhered to a doctrine of "constitutional avoidance," by which it avoids deciding tough constitutional questions when there is a plausible way to make a narrower ruling based on a plain old statute. That's what the court did in last term's voting-rights case—in fact, going so far as to adopt an implausible statutory interpretation to avoid overturning a crown jewel of the civil rights movement.
What we have in Citizens United is anti-avoidance. Kennedy's majority had to go out and grab this one. Justice Stevens' dissent lists three ways the majority could have skirted the constitutional question. One of them would have been to say that McCain-Feingold does not apply to video-on-demand. This and the Stevens' other options are all plausible interpretations, certainly more plausible than the tricky footwork in the voting rights case. Instead, here the court went out of its way to overturn its own precedent, in violation of its usual rule of stare decisis, which calls for respecting past rulings for the good of reliable law-making. And it did so violating its usual rule, which it cited even yesterday, that it does not generally reach issues not raised in the initial petition to the court.
In short, the court did not have to do what it did today. The chief justice issued a brief concurrence apparently solely to defend himself (and Justice Alito, who signed it) against charges of judicial activism. Roberts wrote that the alternative interpretations were not plausible, and that exceptions to stare decisis apply. Opponents of the decision today are likely to be unconvinced. This is a court that has taken a giant leap toward deregulation of the electoral process.
It left in place one requirement: that the corporate and union groups unleashing the attack ads have to disclose who they are (and for that, Kennedy had everyone's vote but Justice Thomas'.) But given the history of money and elections, why should we think that disclosure alone will be enough to deal with the problems of corruption and inequality that threaten our government? I have my doubts. But I'm sure this is a bad day for American democracy.
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