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Josh posted about the U.S. Supreme Court decision regarding corporate expenditures and political campaigns when it came down few weeks ago.

However, I'm the LawNerd around here. And I actually read all 186 pages of the decision—my excuse for this late, but more in-depth post on the historic decision.

Citizens United v. FEC, which struck down campaign finance restrictions on corporate independent expenditures, caused much consternation including the President’s dress-down of the Supreme Court during the State of the Union and an unprecedented visible reaction from one of the majority justices (Alito). Much has been written about the potential impact of the decision on the integrity of our democratic process.  Such speculation is best left to the pundits and political nerds. But, the 186 page set of opinions makes for fascinating reading at least to law nerds and others interested in the inner workings and debates at the Supreme Court.

Here are some observations:

First, as to the merits, despite the torrent of criticism from the left, the decision is a victory for free speech.

A government restriction on speech (i.e. censorship of a political movie funded by a corporation) was struck down under the First Amendment of the United States Constitution.  For a more in-depth discussion on this point, see Ira Glasser’s (former executive director of the ACLU) article on the Huffington Post. Mr. Glasser also identifies the best solution to avoid the potential corrupting influence of corporations, unions, and special interests on elections: Public financing of elections.  A move towards public financing, rather than proposing a constitutional amendment restricting corporate speech, would both improve the fairness and quality of elections while preserving the First Amendment.

Second, the majority opinion of Justice Kennedy is analytically flawed. The dissent of Justice Stevens, which is worth reading, points out a litany of flaws. A couple of flaws stand out.  Justice Kennedy makes a big point of stating that the text of the first amendment does not include any distinctions among speakers, thus corporations cannot be singled out for speech restrictions.  Justice Kennedy is right about the text of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech . . . . “  And if the Supreme Court consistently applied the First Amendment as written, Justice Kennedy’s majority opinion would not have been controversial.  But the Supreme Court’s interpretation of the First Amendment has not been faithful to its text and has often recognized exceptions resulting in restrictions on speech.  And the Supreme Court has upheld restrictions on students, prisoners, members of the armed services, and civil servants because of their identity.  Thus, the identity of the speaker argument does not go as far as the majority suggests.

More significantly, Justice Kennedy’s analysis rests on the proposition that there is no potential for corruption or the appearance of corruption of the political process from corporate spending as long as it is not explicitly coordinated with a candidate.  Protecting against corruption and the appearance of corruption has been held to justify bans and limitations on direct contributions to candidates.  The Justice Steven’s dissent vehemently disagrees with this assumption and points out that Congress is in a better position than the Supreme Court to assess the influence of money on politics and the potential for corruption.

Third, the decision reflects a continuing pro-business bent in the Court since Chief Justice Roberts and Justice Alito joined the Court.  The two Bush appointees often side with businesses on issues ranging from interpretation of the securities laws, to federal preemption of state tort claims, to rejecting large punitive damages awards.  Rather than displaying strict ideological kinship with Justices Scalia and Justice Thomas, Chief Justice Roberts and Justice Alito have tried to approach cases more pragmatically albeit with conservative instincts.

Fourth, the Citizens United decision directly overturned a relatively recent (1990) Supreme Court precedent.  Directly over-turning precedent is rare. Sometimes it is necessary (i.e. Brown v. Board of Education overturning Plessy v. Ferguson). But determining to over-turn precedent on a 5-4 vote—principally because the composition of the Court has changed, establishing a new bare majority that simply disagrees with a holding—is a scary precedent itself. Interestingly, Chief Justice Roberts’ concurrence focuses on why and when it is proper to over-turn precedent.  Although Chief Justice Roberts attempts to provide a more analytic framework than the majority for when it is appropriate to over-turn precedent, it provides little comfort for those concerned about the future of such decisions as Roe v. Wade.

Finally, the decision reflects a heated internal debate within the Court about the use and misuse of “originalism” in constitutional analysis.  “Originalism” is a theory most prominently espoused by Justice Scalia that seeks to understand and apply the constitution as originally written and understood by the framers.  In his dissent, Justice Stevens argues that the framers of the constitution had expressed a significant distrust of corporations (to the extent they existed in the 1790s) and would never have conceived that corporations have unlimited free speech rights to the same extent as people.

Whether this is true or not, the thrust of Justice Stevens argument is really to chide the majority who often relies on originalism to support its position and to critique the theory itself.  Justice Scalia takes the bait and writes a concurring opinion explaining why the decision is right (and Justice Stevens is wrong) based on originalism.  But the most telling point (and criticism) is made by Justice Stevens, perhaps as a parting shot in light of his possible retirement at the end of his term:
“This case sheds a revelatory light on the assumption of some that an impartial judge’s application of an originalist methodology is likely to yield more determinate answers, or to play a more decisive role in the decisional process, than his or her views about sound policy.”
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