“Justice in the Balance: Citizens United v. Federal Election Commission”

Jeff Clements, Free Speech For People Co-Founder and Board Chair, author of Corporations Are Not People, and President of America Promise recently contributed to an ongoing series of posts with the American Constitution Society’s law blog, as part of their “Justice in the Balance” symposium.

To read the piece on the ACS law blog, click here.

An excerpt on how the appointment of Supreme Court justices decided 5-4 rulings on Citizens United and similar cases is shared below:

The 5-4 Citizens United decision in January 2010 held that modest federal limitations on election spending by corporations for or against candidates violated corporations’ free speech rights. The kind of precedent that Roberts promised to respect ‒ including Austin v. Michigan Chamber of Commerce and the relevant part of the 2003 McConnell v. Federal Election Commission – was overruled.

They were just beginning. The Court then set out to ensure that states would not be able to ameliorate the impact of Citizens United. First, in 2011, a 5-4 decision in Arizona Free Enterprise Club PAC v. Bennett struck down an Arizona “clean elections law” that allowed publicly financed candidates to receive additional state election funds to respond to the extraordinary spending for privately financed candidates that Citizens United had unleashed. The 5-4 Court concluded that this mechanism could discourage the wealthy from using big money to dominate election races, thus violating the free speech rights of the wealthy donors.

Illustrating the depth of hostility to the notion that Americans have equal rights to participate in elections and to be represented, Chief Justice Roberts even left his humble judicial perch to embark on his own investigation before oral argument: “I checked the [Arizona] Citizens Clean Elections website this morning and it says this Act was passed to ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that [the law] is unconstitutional?”

A year later, the same majority slapped down the Montana Supreme Court in American Tradition Partnership v. Bullock. The Montana Supreme Court had concluded that the state’s 1912 law limiting spending by corporations in state elections was justified by a long record of corruption, seeking to distinguish Citizens United. Brushing aside the call of Justices Stephen Breyer and Ruth Bader Ginsberg to use the case to reexamine Citizens United, the 5-4 Court instead summarily reversed the Montana Supreme Court and wiped out a century of state Corrupt Practices Acts without a hearing.

Not long afterward, the same 5-4 majority struck again. In McCutcheon v. Federal Election Commission, the Court concluded that a federal law limiting aggregate annual contributions to federal candidates to $123,000 violated the First Amendment. This time, the limit was said to infringe the free speech rights of wealthy donors who wished to purchase influence for that price (something that Justice Kennedy calls mere ”access” and “ingratiation”). The now-unconstitutional limit of $123,000 was more than three times larger than the totalannual wage of more than 100 million Americans.

Chief Justice Roberts once said that repeated 5-4 decisions tend to discredit the Court and make acceptance of its decisions less likely. He was right, and it is not only the general public who respond that way.

The extreme judicial aggression and obtuseness of the 5-4 majority in Citizens United has alarmed jurists across the country. In much the same way as Justice Stevens expressed in hisCitizens United dissent, the growing torrent of dissents and judicial warnings are more than differences of opinion on points of constitutional law; they are calls to action to avoid constitutional catastrophe.

Dissenting in McCutcheon, Justice Breyer refers to our “grave problem of democratic legitimacy.” In the Montana state decision, Supreme Court Justice James Nelson blasted Citizens United: “Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people ‒ human beings ‒ to share fundamental natural rights with soulless creations of government.” After the 5-4 summary reversal in American Tradition Partnership, Nelson retired from the Montana Court and joined the Board of Free Speech For People, which is dedicated to overturningCitizens United and related cases. (Disclosure: I am a cofounder and board member of Free Speech For People.)

Sixth Circuit Court of Appeals Judge Richard Posner has said that the Supreme Court has made our political system “pervasively corrupt.” Leo Strine, the Chief Justice of the Delaware Supreme Court, has written an article called Corporate Power Ratchet, describing how the 5-4 majority has “eroded the ability of we the people to constrain our corporate creations.”

Yale Law School Dean and Federal Court of Appeals Judge Guido Calabresi states definitively that the hostility of the Roberts Court to the political equality of Americans will not last: “[Political equality] is something that is so fundamental that sooner or later it is going to be recognized. Whether this will happen through a constitutional amendment or through changes in Supreme Court doctrine I do not know. But it will happen.”

“It will happen.” A new 5-4 majority could do this. Better would be an end to reckless experimentation by narrow judicial majorities and a return to constitutional basics with a 28th Amendment that settles the matter once and for all.

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