End of the Tunnel?
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.
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.
- Taking Note: Justice Stevens ALI Speech on Bush v Gore (takingnote.blogs.nytimes.com)
- Under the U.S. Supreme Court: 2012 election drowning in secret money (upi.com)
- States back Montana in Citizens United campaign finance fight (rawstory.com)
- The Amazing Justice Stevens (pubcit.typepad.com)
- Supreme Court Watch: FOIA Edition
- Supreme Court Watch: University of Texas Southwestern Medical Center v. Nassar
- Cruzin’ for a Bruzin’
- Supreme Court Watch: Association for Molecular Pathology v. Myriad Genetics, Inc.
- Supreme Court Watch: McQuiggin v. Perkins
- Supreme Court Watch: Butt v. Utah
- Supreme Court Watch: Bowman v. Monsanto Co.
- Supreme Court Watch: Genesis Healthcare Corp. v. Symczyk
- Supreme Court Watch: Kirtsaeng v. John Wiley and Sons, Inc.
- Supreme Court Watch: Fisher v. University of Texas
About dcpetterson (187 posts)
D. C. Petterson is a novelist and a software consultant in Minnesota who has been writing science fiction since the age of six. He is the author of A Melancholy Humour, Rune Song and Still Life. He lives with his wife, two dogs, two cats, and a lizard, and insists that grandchildren are the reward for having survived teenagers. When not writing stories or software, he plays guitar and piano, engages in political debate, and reads a lot of history and physics texts—for fun. Follow on Twitter @dcpetterson