Posted March 5, 2010 by Legal Center Staff
Further Thoughts on Citizens United and the Supreme Court 
Recently, the Federalist Society has been hosting an online debate on the Citizens United decision as part of its online debate series. Legal Center President Trevor Potter’s contribution to this discussion is below.
First--regarding the wisdom of the breadth of the decision: Whatever the actual reasons that caused the majority to seek re-argument of this case, ask for briefing on over-turning Austin, and render its decision, this Opinion has the look of an unseemly activist act by the current five-member majority of the Court. Writers here have speculated that some Justices in the majority may have felt that "time was running out", but whatever the reason it looks more like an act of judicial legislating of the sort usually bemoaned by the Federalist Society than sober constitutional restraint of the sort advocated by the Chief Justice in his confirmation hearings. This is especially so given the obvious hostility some Justices evinced in oral arguments towards Congress and its legislating in this area of law--though Congress certainly has more experience with campaigns and the dangers of corruption than the members of this Court (Justice O'Conner having been the last Justice to have actually stood for office or served in an elected body).
There were numerous "outs" available if the majority really believed that it is always better to avoid overturning an Act of Congress where possible (to say nothing of the laws of some 25 states and numerous local jurisdictions), and that deciding a case on the narrowest possible grounds is a virtue. Instead, Justice Kennedy's Opinion and the Chief Justice's concurrence both make it clear that a solid minority of the Court has disagreed with both the reasoning and the result in Austin for years, and now finally have their fifth vote to right the wrong they perceive. The problem is that the only thing that has changed since the contrary result in McConnell v FEC a few years ago is one Justice on the Court. The majority does not even attempt to argue that McConnell has proven unworkable, or that the circumstances of election finance are different now than a few years ago--usual grounds for overturning a precedent.
Second, much of the defense of the decision has focused on the benefits of the new freedom now guaranteed for economic corporate speech, and the supposed improvement in associational rights afforded by the decision. There is no point in re-litigating the case now, but I would note two things: first, that the actual change wrought by the decision (beyond the important and in my view dangerous theoretical one of finding corporations are the same as individual citizens for first amendment purposes) is fairly small: nonprofits could make independent expenditures with non-profit funds before(MCFL); economic corporations could engage in ballot measure campaigning before (Bellotti) and in candidate specific issue advertising before (WRTL II), and news entities were exempt from the statute anyway. Thus, the Court made a major doctrinal change from a century (or half-century, depending on your view) of tradition on a 5-4 vote simply in order to free up economic corporations to directly intervene in elections--something they could already do through their PACS. The last point gets to the supposed associational advantage afforded by the Opinion: what is it, given that shareholders and executives and their families could already associate for political purposes through a corporate PAC ? Granted, PACS did not have the same amount of money as corporate treasuries to speak, but the symbolic value of their speech (Buckley ) already existed, so the Court "merely" allowed them to turn up the volume a hundred or thousand-fold. That may be a major political achievement, but is it a major constitutional one?
What might the Court have done, consistent with Federalist Society principles, in this case? It could have explicitly rejected the equality reasoning of Austin (which seems to have been the real sticking point for most conservatives here) but either taken one of the "outs" available (such as holding the statute did not cover pay to play movies), or held that principles of federalism (the state statutes) and the respect due Congress and precedent argued against overturning the statute itself when there were alternative (non-equality) reasons available to uphold it.
What WILL the Court do next, now that it has adopted the broad constitutional theory of economic corporations as first amendment citizens and persons, with Justice Kennedy's rationale that government cannot discriminate among speakers , even if some are artificial entities? There are cases making their way through the lower courts now where it is argued that the bans on soft money contributions to national party committees are unconstitutional. The rationale of Citizens United fairly begs for a challenge to the federal (and state and local) bans on corporate contributions directly to candidates (if individuals can give within limits, then why don't corporations have the same right?). Someone will ask the same question about foreign entities--a question Justice Kennedy merely noted was not before the Court in Citizens United. Will the results of these cases be consistent with the majority rationale? If so, will that be good for our Republic??
I argued in my debate with Floyd Abrams that economic corporations are engineered (created by law) to lack an important dimension that our founders believed citizens themselves must have in order for self-government to flourish: Good citizens are supposed to act on occasion for the greater good--for the right, for justice, to advance the long-term good of society. They are expected in some instances to sublimate their own well-being for the betterment of the common whole--in wartime by serving in the military, in all times by serving on juries and by giving of their time for leadership in their communities. There are no such expectations of economic corporations--even those claiming to be "good citizens" are expected to be profit maximizers. This is not a complaint--it is the reality of the difference between the purposes of an economic corporation and an individual citizen--a reality not addressed by the majority in Citizens United. When played out in unlimited independent expenditures, or direct corporate contributions to candidates or party committees to achieve legislative objectives that benefit the corporation's bottom line, this may not be a reality that benefits our Republic. Individuals may make political contributions or expenditures for many reasons, but corporations may only reasonable by expected to give for ONE reason--to advantage themselves in the economic marketplace, regardless of the good of the country.
The entire exchange can be seen at: http://www.fed-soc.org/debates/dbtid.38/default.asp.
