{"id":231349,"date":"2010-01-26T09:00:00","date_gmt":"2010-01-26T14:00:00","guid":{"rendered":"http:\/\/blogs.nybooks.com\/post\/354384835"},"modified":"2010-01-26T09:00:00","modified_gmt":"2010-01-26T14:00:00","slug":"the-devastating-decision","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/231349","title":{"rendered":"The “Devastating” Decision"},"content":{"rendered":"

Ronald Dworkin<\/a><\/h4>\n
\n<\/p>\n
David Bosse, president of Citizens United, posing with the group\u2019s advocacy videos (Lucian Perkins\/Washington Post\/Getty Images)<\/div>\n<\/div>\n

Against the opposition of their four colleagues, five right-wing Supreme Court justices have now guaranteed that big corporations can spend unlimited funds on political advertising in any political election. In an opinion written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas, the Court overruled established precedents and declared dozens of national and state statutes unconstitutional, including the McCain-Feingold Act, which forbade corporate or union television advertising that endorses or opposes a particular candidate.<\/p>\n

<\/p>\n

This appalling decision, in Citizens United<\/em> v. Federal Election Commission<\/em>, was quickly denounced by President Obama as \u201cdevastating\u201d; he said that it \u201cstrikes at our democracy itself.\u201d In his State of the Union speech of January 27, he said, \u201cLast week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests\u2014including foreign corporations\u2014to spend without limit in our elections.\u201d He is right: the decision will further weaken the quality and fairness of our politics.<\/p>\n

The Court has given lobbyists, already much too powerful, a nuclear weapon. Some lawyers have predicted that corporations will not take full advantage of it: they will want to keep their money for their business. But that would still permit carefully targeted threats. What legislator tempted to vote for health care reform or Obama\u2019s banking reorganization would be indifferent to the prospect that his reelection campaign could be swamped in a tsunami of expensive negative advertising? How many corporations fearful of environmental or product liability litigation would pass up the chance to tip the balance in a state judicial election?<\/p>\n

On the most generous understanding the decision displays the five justices\u2019 instinctive favoritism of corporate interests. But some commentators, including The New York Times<\/em>, have suggested a darker interpretation. The five justices may have assumed that allowing corporations to spend freely against candidates would favor Republicans; perhaps they overruled long-established laws and precedents out of partisan zeal. If so, their decision would stand beside the Court\u2019s 2000 decision in Bush<\/em> v. Gore<\/em> as an unprincipled political act with terrible consequences for the nation.<\/p>\n

We should notice not just the bad consequences of the decision, however, but the poor quality of the arguments Justice Kennedy offered to defend it. The conservative justices savaged canons of judicial restraint they themselves have long praised. Chief Justice Roberts takes every opportunity to repeat what he said, under oath, in his Senate nomination hearings: that the Supreme Court should avoid declaring any statute unconstitutional unless it cannot decide the case before it in any other way. Now consider how shamelessly he and the other justices who voted with the majority ignored that constraint in their haste to declare the McCain-Feingold Act unconstitutional in time for the coming midterm elections.<\/p>\n

Citizens United, a small nonprofit corporation almost entirely financed by individual contributions, had made a very negative film about Hillary Clinton. It asked the Court only to rule that its method of distributing that film, on a video-on-demand service, was not outlawed by the Act. It offered several arguments, some of them plausible, for interpreting the Act that way. So the Court did not have to decide whether to overrule the Act: it could have agreed with Citizens United while reserving that larger question. But after they first heard arguments in the case, the five justices declared that they wanted, on their own initiative, to consider declaring the Act unconstitutional. They introduced that unnecessary issue themselves and then scheduled an emergency special hearing during the summer so that they could strike down the statute as quickly as possible.<\/p>\n

Justice Kennedy, in his opinion for the 5-4 majority, tried to explain why that was necessary. It would have been possible, he conceded, to interpret the McCain-Feingold Act\u2019s prohibition of corporate \u201cbroadcast, cable, or satellite\u201d electioneering that is \u201cpublicly distributed\u201d as not applying to video-on-demand TV. But he declined this strategy because transmission technology could be expected to change, so that the Court would be required to revisit the issue time and time again. He did not explain why the Court could not have drafted a general principle interpreting the statute to guide future decisions as technology develops, as it has in so many other cases. For example, the Court\u2019s doctrine of \u201creasonable expectation of privacy\u201d is designed to adapt to evolving technology of surveillance and spying.<\/p>\n

The conservative justices also had to overrule two of the Court\u2019s prior decisions\u2014its 1990\u00a0Austin<\/em> and 2003\u00a0McConnell<\/em> decisions. In his Senate hearings, Roberts declared his great respect for judicial precedent: he said that just because he thought that an earlier Court decision had been wrongly decided or poorly argued would be no reason to overrule it. It would have to have proved unworkable or its basis in principle would have to have been eroded by other intervening decisions. Kennedy offered no evidence that restrictions on corporate electioneering had proved unworkable, which is not surprising because such restrictions had been in place since 1907.<\/p>\n

Instead he argued that the two decisions were themselves inconsistent with other precedents. But as Justice John Paul Stevens pointed out in his long and impressive dissenting opinion, Kennedy was able to cite only one past decision actually to that point: the Court\u2019s 1978\u00a0Bellotti<\/em> decision, in which it in fact denied what Kennedy takes it to have held. \u201cOur consideration of a corporation\u2019s right to speak on issues of general public interest,\u201d the Court stated in that case, \u201cimplies no comparable right in the quite different context of participation in a political campaign for election to public office.\u201d Kennedy disregarded that clear statement because, he said, it occurred in \u201ca single footnote.\u201d But that is a natural place for a clarification; and Kennedy\u2019s suggested distinction between text and note is entirely novel. Some of the Court\u2019s footnotes have proved much more important than the decisions to which they were attached.<\/p>\n

The main theoretical flaw in Kennedy\u2019s opinion is different, however. The opinion announces and perpetuates a shallow, simplistic understanding of the First Amendment, one that actually undermines one of the most basic purposes of free speech, which is to protect democracy. The nerve of his argument\u2014-that corporations must be treated like real people under the First Amendment\u2014is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.<\/p>\n

Kennedy\u2019s opinion left Americans very little room to protect themselves against this further degradation of their democracy. But it did leave some. He acknowledged that the ruling does not prevent Congress from requiring reasonable disclosures and disclaimers in corporate advertising. I believe Congress should require a prominent statement in every such ad disclosing any corporate sponsors and declaring that their support represents the opinion of the corporation\u2019s officers, who have a duty to promote the corporation\u2019s own interests, and not necessarily the opinion of any of their shareholders who are actually paying for the ad.<\/p>\n

I hope to discuss this and other suggestions for legislation\u2014as well as the poor quality of the arguments offered by Justice Kennedy, and the potential consequences of the decision\u2014in more detail in a future issue of The New York Review<\/em>.<\/p>\n

\u2014Updated January 28, 2010<\/i><\/div>\n
\n<\/img><\/a> <\/img><\/a> <\/img><\/a> <\/img><\/a>\n<\/div>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Ronald Dworkin David Bosse, president of Citizens United, posing with the group\u2019s advocacy videos (Lucian Perkins\/Washington Post\/Getty Images) Against the opposition of their four colleagues, five right-wing Supreme Court justices have now guaranteed that big corporations can spend unlimited funds on political advertising in any political election. In an opinion written by Justice Anthony Kennedy […]<\/p>\n","protected":false},"author":4208,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-231349","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/231349","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4208"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=231349"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/231349\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=231349"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=231349"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=231349"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}