Did the Roberts Court misjudge the public mood on campaign finance reform?
Posted Monday, Jan. 25, 2010, at 2:09 PM
One of the defining features of the John Roberts Court is how rarely it's accused of being tone-deaf. With a handful of exceptions, the conservative majority on the court has chipped, sanded, and whittled away at the law without need of a drop cloth. With a toolbox that includes judicial minimalism and constitutional avoidance, a penchant for overruling old cases without explicitly saying so, and an uncanny sense of just how much activism the public will tolerate, the Roberts Court has done a remarkable job of conforming its behavior to the prevailing public mood, resisting the impulse to go too far.
That's what makes last week's bombshell of a decision in Citizens United v. FEC so riveting: The timing was terrible. How could a conservative majority that was unwilling to strike down the Voting Rights Act last June, or do away with the disparate impact test for affirmative-action claims, strike a death blow for the unfettered rights of corporate America during a recession? After a financial meltdown and the firestorm about bankers' bonuses? Did the five justices in the majority really think the mood of the American public was right for a ruling that could allow massive energy and pharmaceutical companies to spend millions on campaign attack ads?
Gallup polls show that while most Americans, 57 percent, consider corporate campaign donations a protected form of free speech, 76 percent nevertheless believe government should limit the amount corporations—and everyone else, for that matter—can give. A poll released last week by Public Strategies reflects that American trust in big corporations is slowly on the rise since last year but still down around 43 percent. So why did this court—which has been uniquely sensitive to public opinion—strike down the electioneering provisions of the 2002 campaign finance law, rather than waiting just a bit longer? In a year or so, public outrage at Wall Street and big business might have cooled off, and John Paul Stevens might have departed the court, taking his resolute views about money and corporate speech with him.
Let's chalk it up to momentum. Trains are large and heavy, and once they get going, it's hard, if not impossible, to stop them. This one had a head of steam up, making it tough to pull on the brakes.
Start with Anthony Kennedy, who has been itching to overrule the 1990 decision in Austin v. Michigan Chamber of Commerce (holding that corporations could be barred from using profits to support or oppose candidates) since, well, Austin. He and Justice Antonin Scalia dissented back then, joined by Sandra Day O'Connor. Along the way they lost O'Connor and picked up Clarence Thomas. The question marks were Roberts and Alito, who had balked two years earlier at going all the way. Then came what seemed the magic moment.
Recall that when it first agreed to hear Citizens United—the case about Hillary: The Movie—it was 2008. The economy hadn't yet tanked. The banks hadn't failed. The housing bubble hadn't burst. Moreover, a split among intellectuals on the left no doubt gave the court's conservatives the impression that this was an auspicious moment to forge ahead. A quick shuffle through the amicus briefs for Citizens United shows that while many on the left deplore the infusion of big money into political campaigns, there was also a hard-core free speech contingent. It includes the ACLU and Floyd Abrams. Left against left. With the liberals divided, conservatives on the court apparently felt ready to seize the moment.
Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law and the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Justice Anthony Kennedy by Mandel Ngan/AFP/Getty Images.