Apparently, so-called judicial activism can work both ways, and it was blatant in the recent SCOTUS decision—Citizens United v. Federal Election Commission. From McClatchy Washington Bureau:

The 5-4 conservative majority decision in Citizens United vs. the Federal Election Commission that struck many decades of law and precedent will likely go down in history as one of the Supreme Court’s most egregious exercises of judicial activism.

In spite of its imperative to rule on “cases and controversies” brought to the Court, to defer to the legitimate lawmaking authority of the Congress and other democratically elected legislatures, and to not allow simple disagreement with past judicial decisions to overrule precedent (stare decisis), the Roberts Court ruled unconstitutional the ban on corporate treasury funding of independent political campaigns.

The Court reached to make new constitutional law by ordering a re-argument of a minor case that itself raised no direct challenge to the laws and precedents that it ultimately overruled; dismissed the legitimacy of laws enacted over a century by Congress and state legislatures; equated the free speech protections of individuals and corporations in spite of countless laws and precedents that insisted on meaningful differences; and provided not a shred of evidence of new conditions or harmful effects that justified imposing their own ideological preferences on a body of settled law and social tradition.

The decision makes a mockery of Chief Justice Roberts’ pious statements during his confirmation hearing that he embraced judicial modesty and constitutional avoidance. His concurring decision to respond to his critics was defensive and lame.

The importance of Justice Anthony Kennedy as a swing vote, via The Canadian Press:

It comes down to this at the Supreme Court: If you’ve got Justice Anthony Kennedy on your side, you can pretty much do what you want. Without him, you’re the author of an angry dissent.

Thursday’s decision to strike down restrictions on corporate campaign spending more than 60 years old was the third time in nine days that the court divided 5-4, with liberals on one side and conservatives on the other.

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The rulings demonstrate the extent to which ideology – not fidelity to precedent or a particular interpretation of the Constitution – is the driving force on the court.

Despite opening the flood gates to corporate influence, there are several, perhaps unintended, side-effects from the recent SCOTUS ruling in Citizens United v. Federal Election Commission. First, there’s worry over foreign influence in elections. From Jason Linkins (also see excerpts from the dissenting opinions below):

A very large percentage of U.S. corporations are owned by foreign persons or entities. In 2006, USA Today reported: “Nearly one in five U.S. oil refineries is owned by foreign companies. Foreign companies also have a sizable presence in running power plants, chemical factories and water treatment facilities in the United States.” It was also reported that, “Roads and bridges built by U.S. taxpayers are starting to be sold off, and so far foreign-owned companies are doing the buying.” In 2008, it was reported that foreign ownership of U.S. companies “more than doubled”between 1996 and 2005. To get a fix on the spending power, consider this: “The total receipts of foreign-owned companies were $1.7 trillion in 1996 and just $39 billion in 1971.”

I’m not trying to stoke zero-sum xenophobia, here. The idea of foreign persons or entities seizing — by judicial fiat — such a dramatic advantage in terms of influence over the American people seems to me to be, as they say, less than ideal.

Second, the same legal theory might be applied to direct contributions to politicians. From BusinessWeek:

Emboldened by the ruling, critics of campaign finance regulation may now challenge the ban on direct corporate donations to candidates.

“If all speakers are going to be treated the same, why wouldn’t a corporation be able to make a contribution to a candidate just like a PAC or an unincorporated association or an individual?” said James Bopp Jr., a campaign finance lawyer who has fought limits on political money.

The decision also may strengthen political party groups that seek to end the McCain-Feingold ban on unlimited contributions to parties from labor and corporations.

Certailny, the SCOTUS ruling is a perceived win for republican interests (there may be unintended consequences). The ruling is also a direct consequence of former George W. Bush’s attempt to turn the Court conservative. From a letter to the editor at the Los Angeles Times:

Corporations and their lobbies already call most of the shots in Washington, but this latest ruling adds to the Republican philosophy that the purpose of government is to benefit the rich and powerful.

Republicans have finally succeeded in turning the Supreme Court into an arm of the Republican Party. This spells the end of democracy in America.

Certainly, the conservatives on the High Court have limited free speech for human speakers in the past, so it’s somewhat perplexing, or maybe not, that certain justices (i.e., Scalia) expanded speech of corporations or the scope of speech (although the dissent argued that the “case concern[ed] how, not if, the appellant may finance its electioneering.”). Despite the departure from legislative and judicial precedent, the government can place restrictions on speech. From the dissent in Citizens United v. Federal Election Commission (footnotes omitted and emphasis added):

Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees. When such restrictions are justified by a legitimate governmental interest, they do not necessarily raise constitutional problems. In contrast to the blanket rule that the majority espouses, our cases recognize that the Government’s interests may be more or less compelling with respect to different classes of speakers, cf. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 585, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) ( “[D]ifferential treatment” is constitutionally suspect “ unless justified by some special characteristic” of the regulated class of speakers (emphasis added)), and that the constitutional rights of certain categories of speakers, in certain contexts, “ ‘are not automatically coextensive with the rights’ “ that are normally accorded to members of our society . . .

Furthermore, some democratic politicians might  feel that their speech is restricted since any lambasting on their part might result in a backlash of corporate financing to overthrow or counter the criticism. However, the ruling may have unintended consequences for Republicans as well. From The Star-Ledger:

But who really knows? These things often have unintended consequences. Ben L. Ginsberg, a long-time lawyer for GOP conservative causes, counsels caution.

“It’s going to be a wild, wild West” in future campaigns, he warned, “with a lot more voices and the loudest voices are going to be corporations and unions.” In the process, the power of both parties, Republicans as well as Democrats, could be diminished as corporations and unions run their own campaigns and give less cash to either party.

Why run money through the parties — the middle men — when corporations are free now to spend all they want on their own more tightly targeted campaigns for issues and candidates? Conceivably, they could now spend enough to dominate party primaries, denying Democrat and Republican leaders the power to nominate preferred candidates.

Via the “pro-corporate conservative wing of the Court,” the ruling certainly impacts environmental interests or issues too. Via Kate Sheppard for Mother Jones:

Cathy Duvall, political director of Sierra Club, warned in a statement that the ruling will unleash a “tidal wave of special interest cash and influence peddling” on the electoral process. The decision, Duvall noted, will give even more power to major lobbying groups, such as the Chamber of Commerce, that regularly oppose environmental regulations.

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Gene Karpinski, president of the League of Conservation Voters, said the decision will “open the floodgates for oil companies like Exxon.” He noted that Exxon Mobil’s PAC spent just over $811,000 on the 2008 election, but would now be free to pour massive sums into political advertising—”potentially drowning out the voices of the majority of Americans who support investing in clean American energy and reducing harmful carbon pollution.”

Of course, not everyone is outraged by SCOTUS’s ruling. I would argue that this opinion via the San Jose Mercury News ignores the fact that corporations legitimately have an interest in politics, since politicians make policies that impact corporations. It’s why we have lobbyists:

The assumption that corporations, especially publicly held ones, will now plunge headlong into the partisan political arena doesn’t fit with what most of us should know: Corporations are led by people who are generally conservative in thought and deed. They think twice before they do anything in the political arena. Spending shareholder money in a desperate effort to install right-wing office holders is not how most corporate types I know are likely to behave.

Retired Supreme Court Justice Sandra Day O’Connor (who isn’t shy about criticizing some SCOTUS decisions and has shown disappointment that her rulings were being “dismantled” since leaving the Court) had these thoughts on the ruling (via the New York Times):

“Gosh,” she said of last week’s campaign finance bombshell, “I step away for a couple of years and there’s no telling what’s going to happen.”

Justice O’Connor was giving the keynote address at a Georgetown law school conference devoted in part to how Thursday’s campaign finance decision,Citizens United v. Federal Election Commission, will affect judicial elections.

Her answer: “In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”

Despite SCOTUS’s ruling, Congress can still pass remedies to counter it. Here is a list of potential remedies via Nieman Watchdog:

Congress and the SEC have the power to make sure that corporate political spending reflects the will of the shareholders, not just management. There is absolutely no dispute that boards of directors have a fiduciary obligation to represent the interests of the shareholders, although, unfortunately, since boards are chosen by management, this has been honored more in its breach than its observance.

As a partial solution, the SEC and the FEC should promulgate rules before the next election to ensure that decisions on corporate political spending represent the desires of the shareholders. This could be done by requiring boards of directors to poll shareholders before making any specific political expenditure. Boards should be required to vote on each such political expenditure and publicly reveal every member’s vote. Ads paid for by a corporation or group of corporations should be required to reveal who was paying for it and perhaps, like a candidate, the Chairman of the Board should be required to appear and say the board approved the ad.

In order to prevent money laundering, bundling the cost of such ads under a group’s name should be prohibited so the public really knows who paid for the ad. Shareholders who disapproved of such expenditures should be allowed to get from the corporation their proportionate share of the expenditure. This wouldn’t have much effect if an individual wanted his money, but it would have an effect if pension funds and other large investors demanded their money.

In addition, foreign owned or controlled (5 percent or more?) corporations should be prohibited from spending money to influence American elections.

Congress ought to explicitly prohibit corporations from deducting the cost of such ads from their income so that taxpayers are not subsidizing them.

Congress should prohibit corporations that are government contractors from spending money on such ads. Such spending would seem to fall within the same rationale that the Court recognized in continuing to prohibit direct corporate contributions to politicians or upholding the Hatch Act.

The dissent argues that the issue isn’t about corporate speech but how the corporation may fund electioneering (emphasis added):

The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

Next, the dissent contrasts corporations from human speakers and stresses, “Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.” Emphasis added:

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The dissent illustrates how the pro-corporate conservative wing of the Court departed from legislative and judicial precedent:

The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm., 459 U.S. 197, 209, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (NRWC), and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id., at 209-210. The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (WRTL), McConnell v. FEC, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), FEC v. Beaumont, 539 U.S. 146, 123 S.Ct. 2200, 156 L.Ed.2d 179 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL), NRWC, 459 U.S. 197, 103 S.Ct. 552, 74 L.Ed.2d 364, and California Medical Assn. v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981).

More quotes from the dissent:

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.

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The Court operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.

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Going forward, corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able to spend a dime of soft money on ads of any kind.

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In the end, the Court’s rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Today’s ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.” Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986).

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So let us be clear: Neither Austin nor McConnell held or implied that corporations may be silenced; the FEC is not a “censor”; and in the years since these cases were decided, corporations have continued to play a major role in the national dialogue. Laws such as § 203 target a class of communications that is especially likely to corrupt the political process, that is at least one degree removed from the views of individual citizens, and that may not even reflect the views of those who pay for it. Such laws burden political speech, and that is always a serious matter, demanding careful scrutiny. But the majority’s incessant talk of a “ban” aims at a straw man.

Political cartoons found here and here

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