Did the Roberts Court misjudge the public mood on campaign finance reform?

The law, lawyers, and the court.
Jan. 25 2010 2:09 PM

Speeding Locomotive

Did the Roberts Court misjudge the public mood on campaign finance reform?

Justice Anthony Kennedy. Click image to expand.
Justice Anthony Kennedy

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?

Advertisement

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.

TODAY IN SLATE

Doublex

Crying Rape

False rape accusations exist, and they are a serious problem.

Scotland Learns That Breaking Up a Country Is Hard to Do

There’s a Way to Keep Ex-Cons Out of Prison That Pays for Itself. Why Don’t More States Use It?

The Music Industry Is Ignoring Some of the Best Black Women Singing R&B

How Will You Carry Around Your Huge New iPhone? Apple Pants!

Culturebox

Theo’s Joint and Vanessa’s Whiskey

No sitcom did the “Very Special Episode” as well as The Cosby Show.

Television

The Other Huxtable Effect

Thirty years ago, The Cosby Show gave us one of TV’s great feminists.

Cliff Huxtable Explains the World: Five Lessons From TV’s Greatest Dad

Why Television Needs a New Cosby Show Right Now

  News & Politics
The World
Sept. 19 2014 11:36 AM Breaking Up Countries Is Still Hard to Do
  Business
Moneybox
Sept. 19 2014 12:09 PM How Accelerators Have Changed Startup Funding
  Life
The Vault
Sept. 19 2014 12:08 PM The CIA Used to Have a Commute-by-Canoe Club. One Member’s Memories.
  Double X
The XX Factor
Sept. 19 2014 11:33 AM Planned Parenthood Is About to Make It a Lot Easier to Get Birth Control
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 19 2014 12:10 PM Watch the Trailer for Big Eyes, a Tim Burton Movie About People With Normal-Sized Eyes
  Technology
Future Tense
Sept. 19 2014 11:40 AM Apple Invented the Perfect Way to Handle Your Giant New Phone
  Health & Science
Medical Examiner
Sept. 19 2014 12:13 PM The Most Terrifying Thing About Ebola  The disease threatens humanity by preying on humanity.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.