John Paul Stevens, U.S. Supreme Court justice.

John Paul Stevens, U.S. Supreme Court jus­tice. (Photo credit: Wikipedia)

Retired Supreme Court Jus­tice John Paul Stevens has weighed in on the mon­u­men­tal 2010 Supreme Court rul­ing known as Cit­i­zens United. Jus­tice Stevens orig­i­nally joined the minor­ity in dis­sent. He still doesn’t approve.

It is unusual for retired Supreme Court Jus­tices to offer opin­ions on the work of their for­mer col­leagues. But Jus­tice Stevens does not appear to be shy. He even offered some thoughts on what the future might hold.

The rul­ing allows cor­po­ra­tions, unions, polit­i­cal action com­mit­tees, and wealthy indi­vid­u­als to spend unlim­ited amounts of money to sup­port or oppose can­di­dates. It over­turned a cen­tury of previously-​​settled law regard­ing cam­paign finance.

What dif­fer­ence does this rul­ing make? An excel­lent sum­mary of its effects to date can be found here, and they are stun­ning. As an exam­ple, in Mass­a­chu­setts alone,

Fast-​​forward two years and the effects of that rul­ing are impos­si­ble to miss: accord­ing to the non-​​partisan Cen­ter for Respon­sive Pol­i­tics, spend­ing by Super PACs in the cur­rent elec­tion cycle hit a whop­ping $100 mil­lion ear­lier this month—with six months to go until Elec­tion Day. “A sin­gle super PAC, the pro-​​Mitt Rom­ney Restore Our Future, has already spent more—$44.5 million—than all out­side groups com­bined had spent by this point in 2008,” the group reports.

Cit­i­zens United is being chal­lenged by twenty-​​two states and the Dis­trict of Colum­bia, in their effort to rein in cam­paign spend­ing through appli­ca­tion of state law. The Court has agreed to hear a case involv­ing a century-​​old law in the state of Mon­tana, known as the “Cor­rupt Prac­tices Act,” that restricts cor­po­rate giv­ing. Other states have joined the suit. That case — being billed as Cit­i­zens United II — will be heard by the Court on June 14 of this year. It will be inter­est­ing to see the reac­tion of pro­po­nents of “states’ rights” who sup­port the orig­i­nal Cit­i­zens United ruling.

As part of the land­mark 2010 case, the Supreme Court held that “inde­pen­dent expen­di­tures, includ­ing those made by cor­po­ra­tions, do not give rise to cor­rup­tion or the appear­ance of cor­rup­tion.” Sup­port­ers of the rul­ing need to embrace that idea as part of that sup­port, for it’s at the heart of the argu­ment: that money does not cor­rupt; it does not con­sti­tute influ­ence or bribery; it has no unnat­ural effect on the elec­tion process. One must addi­tion­ally assume that adver­tis­ing, unreg­u­lated by con­sid­er­a­tions of hon­esty or quan­tity, has no impact on consumers.

In his State of the Union address in Jan­u­ary of 2011, Pres­i­dent Obama crit­i­cized the rul­ing, say­ing that it could allow for­eign inter­ests to spend money attempt­ing to influ­ence Amer­i­can elec­tions. Jus­tice Samuel Alito was seen to mouth the words “Not true.” Recently, at a con­fer­ence at the Uni­ver­sity of Arkansas in Lit­tle Rock, Jus­tice Stevens seemed to agree with the Pres­i­dent, say­ing:

A rule that opens the flood­gates for for­eign cam­paign expen­di­tures will increase the rel­a­tive impor­tance of out-​​of-​​state speak­ers and min­i­mize the impact of vot­ers’ speech that addresses purely local problems.

Stevens said the Court didn’t specif­i­cally address for­eign con­tri­bu­tions, but some day will undoubt­edly need to. They are likely to rule that for­eign con­tri­bu­tions are not allowed. Stevens said:

The court must then explain its aban­don­ment of, or at least qual­ify its reliance upon, the propo­si­tion that the iden­tity of the speaker is an imper­mis­si­ble basis for reg­u­lat­ing cam­paign speech.  It will be nec­es­sary to explain why the First Amend­ment pro­vides greater pro­tec­tion of some non-​​voters than to that of other non-​​voters.

And then, in Jan­u­ary of this year, the Supreme Court upheld a lower court rul­ing that dis­al­lowed polit­i­cal con­tri­bu­tions by a pair of non-​​citizens. Stevens con­cluded that is now set­tled “that the iden­tity of some speak­ers may pro­vide a legally accept­able basis for restrict­ing speech” through contributions.

Stevens went on to point out a par­al­lel with the recent series of Repub­li­can pres­i­den­tial debates, not­ing that the rules for those debates gave the can­di­dates roughly equal time:

Both the can­di­dates and the audi­ence would surely have thought the value of the debate to have suf­fered if the mod­er­a­tors had allo­cated the time on the basis of the speak­ers’ wealth, or if they had held an auc­tion allow­ing the most time to the high­est bid­der. Yet that is essen­tially what hap­pens dur­ing actual cam­paigns in which rules equal­iz­ing cam­paign expen­di­tures are forbidden.

Even early on, before Stevens left the Court, cracks had already begun to appear in the Cit­i­zens United rul­ing. He said that within months of that case,

the court upheld the con­sti­tu­tion­al­ity of a fed­eral law that pro­hibits pro­vid­ing mate­r­ial sup­port or resources to a for­eign ter­ror­ist group, includ­ing expert advice intended to sup­port only non-​​terrorist activ­i­ties. Stevens, who joined in that opin­ion, said the rul­ing sug­gests the court some­day may sup­port pro­hibit­ing the free speech of ter­ror­ist groups.

That would be another blow to “the propo­si­tion the iden­tity of the speaker is a per­mis­si­ble basis for reg­u­lat­ing cam­paign speech” or the fund­ing that allows that speech, he said.

So the end of unreg­u­lated and unlim­ited con­tri­bu­tions may be in sight. Jus­tice Stevens said that the Court may be hav­ing “sec­ond thoughts” about its deci­sion. We’ll see how the upcom­ing Cit­i­zens United II plays out. Per­haps the Supreme Court will also recon­sider some of its other recent dis­as­trous rul­ings, once the effects of those rul­ings are obvi­ous even to Samuel Alito.

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