It is time for everyone to drop all the talk about the Roberts court's "judicial minimalism," with Chief Justice Roberts as an "umpire" who just calls balls and strikes. Make no mistake, this is an activist court that is well on its way to recrafting constitutional law in its image. The best example of that is this morning's transformative opinion in Citizens United v. FEC. Today the court struck down decades-old limits on corporate and union spending in elections (including judicial elections) and opened up our political system to a money free-for-all.
Back in June, I explained to Slatereaders the basics of this case. Citizens United is an ideological group, like the NRA or Planned Parenthood, except that it takes for-profit corporate funding. It produced an anti-Hillary Clinton documentary. The group wanted to air the documentary during the 2008 presidential primary season through a cable television video-on-demand service and to advertise for it on television. In exchange for a $1.2 million fee, a cable-television-operator consortium would have made the documentary available to subscribers to download free on demand. The McCain-Feingold campaign-finance law passed in 2002 bars certain corporate-funded television broadcasts, such as this documentary, in the 60 days before a general election (or the 30 days before a primary). And the law requires disclosure by the funders of election-related broadcast advertising, such as these ads. Citizens United argued against the corporate-spending ban.
Citizens United's broadest argument was that the court should overrule its 1990 case Austin v. Michigan Chamber of Commerce, which upheld limits on corporate spending in candidate elections. Before argument, I expected the court to take a different course by deciding this case narrowly. The court could have done that by saying that McCain-Feingold's statutory rules barring corporate-funded television broadcasts don't apply to video-on-demand broadcasts. That would be in line with some of the past decisions of the Roberts court, when it had preferred to chip away at existing precedent rather than dramatically move the law rightward. But, as Dahlia Lithwick explained, at oral argument the government's lawyer got into some trouble in suggesting that the government would have the constitutional power to ban corporate-published books just before the election. The exchange made it seem like the court could well be poised to overrule Austin.
All bets were off at the end of the last term, when the court announced the case would be rescheduled for a second round of oral argument last September specifically to reconsider the overruling of Austin case and a second case, McConnell. We've been waiting ever since.
Today Justice Kennedy wrote for a court majority of the five conservative justices. He effectively wiped out a key provision of Congress' 2002 campaign finance reform. He also did indeed strike down Austin and parts of McConnell. To Justice Kennedy, any limits on the independent spending of money in elections smack of government censorship. The limits Congress enacted in 2002 remind him of old English laws requiring licensing for speech. He talked about the byzantine sets of federal laws and regulations involved—genuinely confusing, it's true—and said that none of it was permissible under the First Amendment. He talked of the rise of the Internet and blogs and how the government could soon come in and start regulating political blogging if the court did not step in.
Though the decision deals with federal elections, expect state and local corporate and union spending limits to be challenged, and to fall, throughout the country. There are many responses to Justice Kennedy's reasoning. He wrongly assumes that corporations or unions can throw money at public officials without corrupting them. Could a candidate for judicial office, for example, be swayed to rule in favor of a contributor who donated $3 million to an independent campaign to get the candidate elected to the state supreme court? Justice Kennedy himself thought so in last year's Caperton case. And yet he runs away from that decision in today's ruling. Justice Kennedy acknowledges that with the "soft money" limits on political parties still in place, third-party groups (which tend to run more negative and irresponsible ads) will increase in strength relative to political parties. And that possibility raises the real chance Congress will repeal the "soft money" limits, thereby increasing the risks of quid pro quo corruption.
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.