Citizens United: stare decisis, judicial activism and the factual record

September 11, 2009   •  By Jeff Patch
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A common thread in media accounts and analyses of the Citizens United v. FEC re-argument seems to dominate all other considerations: It’s now assumed that Citizens United will win but observers are unsure of how far-reaching the decision will be. The speculation specifically focuses on whether Chief Justice John Roberts and Justice Samuel Alito are prepared to overturn two of the Court’s precedents — Austin v. Michigan Chamber of Commerce and McConnell v. FEC.

The Center for Competitive Politics has mostly addressed the thematic arguments of this case on their merits (our most recent post, from CCP President Sean Parnell, discusses a central issue of the case and how the campaign finance debate probably shifted with talk of book banning), and it’s clear that a majority of the Court has rejected the arguments of the government and supports the principles of a robust First Amendment protecting political speech of all — including corporations and unions.

The question now seems to be whether Chief Justice Roberts and Justice Alito, the two conservatives who haven’t officially weighed in on Austin, have any reservations about eviscerating Austin and McConnell. All indications are that they do not, especially considering that if the Court was prepared to rule narrowly, it could have done so in June.

‘Reformers’ exposed as logically inconsistent

A New York Times editorial today is typical of the editorial board cognoscenti mind-set: “Chief Justice John Roberts and Justice Samuel Alito seemed to put little weight on the fact that the court has repeatedly upheld a ban on corporate campaign expenditures,” the Times wrote, absurdly adding that Roberts’ Court legacy depends on upholding Austin and McConnell. The New York Times adds this piece Saturday by Jeffrey Rosen, elaborating on the “judicial activism” argument.

“It was just six years ago that the Supreme Court upheld the electioneering communications provision in McCain-Feingold and nothing has happened in that time to warrant the drastic step of overruling that decision,” Sens. John McCain and Russ Feingold said in a statement. “During his confirmation hearing, Chief Justice John Roberts, whom we both voted for, promised to respect precedent. If he casts the deciding vote to overrule Austin and McConnell, it would completely contradict that promise and could have serious consequences for our democracy.” At the re-argument, former Solicitor General Seth Waxman, representing McCain and Feingold, spoke of 100 years of government regulation of corporate campaign involvement and invoked the Tillman Act of 1907 as “a law that has been on the books forever,” earning a rebuke from Justice Alito that the Court’s precedents in this case don’t extend beyond Austin.

An interesting point in these procedural questions is that reformers are simultaneously advancing two logically inconsistent principles: one is the Supreme Court should not overrule recent precedents — McConnell (2003) and the semi-recent Austin v. Michigan Chamber of Commerce (1990); the other is the Court should not overturn long-standing precedents or statutes, mainly the Tillman Act.

The 100-year-precedent argument, also advanced by Fred Wertheimer and his cohorts, doesn’t fly because the Tillman Act banned corporate direct contributions, not at issue in this case (as Justices Alito and Anthony Kennedy noted). Independent corporate expenditures were not banned until the 1947 Taft-Hartley Act, but this was rarely enforced prior to the 1974 FECA Amendments. The Court did not uphold such a ban until Austin in 1990. Chief Justice Roberts also rebuked Waxman on this point, citing a  brief filed by campaign finance scholars and drafted by CCP board member Allison Hayward.

But, since “reformers” insist on holding up that 100-year-old law as sacred — although passed by perhaps the most racist Senator in history in an effort to kneecap corporate opponents of civil rights — they must live with the consequences.

Consider the practical implication of these two competing principles of stare decisis: the Court shouldn’t overturn recent (let’s say, six-to-nineteen-year-old) precedents or long-standing (let’s say, century-old) precedents. So, what’s okay — overturning 27-year-old precedents? Never overturning precedents, no matter how wrongly decided (such as the obvious example of Plessy v. Ferguson)? There’s probably no serious legal observer who thinks that stare decisis means a precedent may never be overturned. Precedents must, of course, be afforded respect and overturned only with deliberate care and compelling justification — and it can certainly be argued that by allowing a rehearing of this case focusing on the precedents, rather than expansively deciding this case in June, the Court has respected this principle.

There’s not just one precedent at stake in this case, though.

Buckley et al v. Austin and McConnell

At the re-argument, the government abandoned Austin‘s anti-distortion and mass aggregation of wealth rationales, tried to sidestep its book banning contention, and bet the farm on two arguments: (1) that the government can regulate independent corporate and union speech because of a danger of quid pro quo corruption or corrosion of the political process and (2) that the government needs to protect minority shareholders who may not agree with certain corporate speech.

Chief Justice Roberts explicitly rejected these two contentions as wholly inconsistent with prior Supreme Court jurisprudence on campaign finance — specifically Buckley v. Valeo, which rejected the notion that the government could regulate independent expenditures because of a danger of corruption. He further ridiculed the shareholder protection rationale as “extraordinarily paternalistic” and also rejected the notion that corporations, unlike individuals, cannot have political as well as economic interests. Other precedents include FEC v. National Conservative Political Action Committee (1985), Citizens Against Rent Control v. City of Berkeley (1981), First National Bank of Boston v. Bellotti (1978), and numerous lower court precedents.

Now that the government has abandoned the original rationales for Austin, how can “reformers” howl about precedent when affirming the government’s new arguments would require the Court to reject the controlling precedent of Buckley? [To be fair, some pro-regulation groups, like the Brennan Center for Justice, have long called for the overruling of Buckley. Perhaps not coincidentally, Brennan did not focus on stare decisis in its amicus brief.]

Charges of ‘judicial activism’

A related charge by “reformers” is that by overturning Austin and McConnell, Supreme Court conservatives would be engaging in an unprecedented bout of judicial activism. This term is never really defined by “reformers” or most media stories addressing the topic, but it seems clear that they’re referring to judicial activism as either striking down precedent, existing law or both. The Center for Competitive Politics has consistently rejected that simplistic definition, and argues that a more appropriate definition of judicial activism involves upholding laws based on one’s personal opinions or preferences instead of the Constitution — or overturning laws or precedent for that reason.

As CCP Chairman Brad Smith remarked at the Cato Institute’s Sept. 8 policy debate on Citizens United:

It is not judicial activism every time the Court overturns a precedent or overturns a statute. These are controversial and difficult issues — when a Court should give leeway to Congress and when a Court should overturn a precedent, but basically if something doesn’t belong in the constitution it should be overruled. And Austin has long been the odd case out in the Court’s campaign finance jurisprudence and a case that seems at odds with the constitution itself.

You can be a judicial activist if you go around striking down statutes as unconstitutional because you don’t like them, but you can also be a judicial activist if you go around upholding statutes as constitutional because you do like them, even though they probably violate the constitution. And I would argue that is in fact what the Supreme Court has frequently done in the area of campaign finance.

A factual record of the First Amendment implications of independent corporate and union speech?

Another related procedural argument by reformers involves the claim that the Court should not overturn Austin and McConnell without allowing time for the government to contribute to a factual record on the implications. They argue that because the case is complex, the Court should allow the government and others to compile a factual record of what would happen if the Court allowed unfettered union and corporate speech.

This would place the burden of proof on those who wish to exercise their constitutional rights, not those who seek to restrict them. Imagine if the Court had required the New York Times in New York Times v. Sullivan to show a lengthy record on the likely impact of the civil rights era ad at issue before it was allowed to publish it. Most people would think that would be absurd, but so is requiring corporations and unions to continue to remain silent while they prove how their speech might affect the political process — a hypothetical exercise anyway.

What the available factual record does show, however, is that corporate and union speech is likely to be modest, and that in states that allow independent expenditures — and even in those that allow direct corporate contributions — there is no evidence of corruption as a result, further shifting the burden of proof to the government. To be sure, a modest increase in corporate and union spending on political speech is expected, which would broaden the political debate.

Claims by reformers, though, that corporate independent spending would amount to “hundreds of millions of dollars” and drown out the voices of “average” Americans are nothing more than Chicken Little rantings.

In 2002, the last election cycle in which soft money contributions from corporations were allowed in federal races, the largest corporate donor spent only $9.3 million. Fewer than 10 corporations spent as much as $2.5 million. Five unions spent that much (Surprisingly to some, the three largest corporate donors gave all of their contributions to Democrats. That political pattern would likely continue given the current Democratic control of Capitol Hill). None were banks, investment firms or insurance companies. The overwhelming majority of some $2 billion in political spending came from individuals [Here’s the background data from the Center for Responsive Politics]. Campaign finance “reformers” have criticized issue ads as “sham issue ads” and argued they’re functionally equivalent to express advocacy, so let’s look at 527 issue advertising. Only two percent of contributions to federal 527s in 2007 came from businesses, according to the Campaign Finance Institute.

The evidence is even more convincing in the states. Today, 26 states allow unlimited corporate electioneering in state races — independent ads advocating for or against candidates. Are these 26 states hopelessly lost in a cesspool of corporate influence? Certainly not. Furthermore, 28 states allow direct contributions from corporations to candidates — in seven states, such contributions are unlimited. (New Mexico recently passed limits that haven’t yet gone into effect; Nebraska has no limit except candidates may not accept over 40 percent of their funds from businesses or other groups.)

On the merits, and on the finer technical points of procedure, the Court should — and it appears that it will — overturn Austin and McConnell and open up the political process to all that wish to be heard, not just those that the government allows to speak. When it does, we wonder how long it will be before “reformers” say that the precedent of Citizens United v. FEC must be overturned…

Jeff Patch

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