by Craig Barnes
On January 21st the Supreme Court of the United States issued an opinion that rocks the foundations of democracy and the assumptions about who governs in America. Citizens United v. Federal Elections Commission raises questions, doubts, and fears like no other decision in generations. It involved the attempt by a right wing group to distribute a political video that was highly critical of Hillary Clinton during the primary season of 2008. The FEC held that to show the film within 30 days of an election would be in violation of the long-standing rule against corporate spending. A federal district court heard a mountain of evidence concerning corruption and agreed with the FEC.
On January 21, 2010, the Supreme Court reversed, holding that this limit on corporate free speech was unconstitutional. Corporations, as much as persons who bleed and suffer, must be allowed to participate in America’s elections. Five conservative justices stated that as a matter of law corporate monies (a) will not distort the balance of power in elections, (b) will not give the appearance of corruption, and (c) will not deprive shareholders of their rights.
There was no controlling precedent upon which the five justices relied or could have done. Instead they acted upon their own motion to overrule a body of contrary precedents dating back to1908 and in the laws of 22 states. The net effect of unraveling all these precedents will be an upheaval in American election law, across the board.
Every first-year law student learns that precedents are binding. These five justices, to the contrary, explicitly held that precedents are not binding when they believe that those earlier cases were “not well reasoned.” The “not well reasoned” test is, sadly, no more than a “we don’t like it” test, and that now means that any legal precedent may be overruled whenever the Court changes hands, or, as the case may be, changes minds. This is not any longer the rule of law but becomes the rule of personalities. When personalities change, the law may change.
History tells us that when the law becomes the whim of personal opinion, kings and priests, presidents and commanders, corporations and aristocrats take over. That is the larger danger that these five justices have now ushered into American life. Government by large property interests will not be the same as government by the people.
In January 1776, Thomas Paine cried out against government by propertied interests in his famous pamphlet Common Sense. “Of more worth, he wrote, “is one honest man to society, … than all the crowned ruffians that ever lived” and with those words Paine justified our separation not just from the king but from the domination of all those aristocratic interests in England. On January 21, 2010, however, with one decision, five justices (out of an American population of over 300 million) have acted to put the propertied interests back in control.
The result is more egregious because to get to this result the five justices did not follow traditional rules. To the contrary, one after the next, they violated rules that lawyers and courts have relied upon for generations:
They ignored the ancient principle of limiting constitutional decisions to matters presented by the case before them and instead made a general declaration of unlimited application not just to this case and these facts, but to any case of corporate speech. They thus implied that they will look skeptically upon any limit on corporate speech, whatsoever, in all possible alternate fact situations in the future. Such rulings of general application are rare and have been disapproved since the founding of the republic, in principle. These five disregarded that ancient principle.
They also, in an act of extreme self-confidence, made their own findings of fact concerning corruption and the appearance of corruption. They said there was no connection between massive corporate spending and the reality that legislation will thereby be influenced, and held to that effect in spite of mountains of congressional and lower court findings to the contrary. The five justices therefore substituted their own imagined findings for the actual findings by both congress and the lower court.
They said, out of the blue, that the public’s faith in the democratic process would not be affected by corporate spending. That one is a shocker.
To disregard the findings of fact of the lower court and to establish new findings out of thin air violates the first principle of appellate practice and threatens the integrity of all courts. Why bother presenting facts to the lower court, every litigant may now ask, if the Supreme Court can come up with its own facts and decide the case based upon ideology?
Further, if a corporation owned by sheiks of Saudi Arabia or Burundi, or even by Osama bin Laden, decides to invest billions in American elections, there is nothing in this decision to stop them. They did not just open the floodgates to AIG and the pharmaceuticals; they beckoned global corporations to play with American politics as well.
It does not end there. The five rejected the idea that shareholders who disapprove of a corporation’s political advertisements should be taken into account. One of us might favor health care reform, and we might own stock in, say, General Motors. But if General Motors opposes health care reform with millions of dollars of advertising our opinions are irrelevant. The five said that as far as they are concerned, shareholders’ money may be used to advance opinions with which thousands or millions of those shareholders disagree.
To overrule one hundred years of established law and alter the course of American politics is the height of judicial activism. That it should be accomplished by judges who held themselves out to the Congress and to the public as originalists or as devoted to the ideas of James Madison or Thomas Jefferson, or to the idea that the law should be above politics is to reveal either a deep cynicism or intellectual dishonesty. It cannot be claimed to be good lawyering, or required by precedent, or existing Supreme Court practice.
Not since Bush v. Gore when the Court selected a president has a decision seemed as political and not since Dred Scott in 1857 when the court declared slaves to be property and therefore not citizens or entitled to constitutional protection, has a decision reached as far into American culture as this will do.
These five justices have therefore now thrown down the gauntlet. They have proclaimed, in effect, that the rise of control by the propertied interests is to the long-term benefit of all Americans and is not to be restrained. From the public response since January 21st, it is clear that millions of Americans disagree. When president Obama singled out the Court in his State of the Union speech and castigated them for this decision he was met with ringing applause and a standing ovation by members of Congress who rose to their feet around the sitting, silent justices. Justice Samuel Alito, wagged his head in disbelief that a president should question his judgment but all around him, the galleries roared.
It may be well in the days to come for the five justices to realize that they have provoked the overwhelming disapproval of those who still believe in democracy. Some will suggest constitutional amendments. Some will suggest changing the nature of the court. Some will suggest legislation. The gauntlet is down. The Supreme Court has put itself on the front burner of American politics.
Santa Fe, February 1, 2010
Filed under: Election Law |