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Citizens United Changed Everything

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It has been a month-and a-half since the Supreme Court's monumentally wrong 5-4 ruling in Citizens United, and there is no sign that the firestorm the ruling set off in Washington and around the country is going to die any time soon.

On Tuesday, Chief Justice John Roberts weighed in on the brouhaha over President Obama's criticism of the ruling at his State of the Union address, and Justice Alito's silent rejoinder, suggesting that the Justices might not attend future addresses. The White House responded yesterday with a new round of criticism of the decision, with Robert Gibbs stating that the Court's ruling opened "the floodgates for corporations and special interests to pour money into elections -- drowning out the voices of average Americans."

Also yesterday, the Senate Judiciary Committee had a remarkably spirited and well-attended hearing on the ruling (video here), which was written up in this front-page story in today's Washington Post. My organization released a report at the hearing entitled "A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law," explaining why Citizens United cannot be squared with the Constitution's text and history, and I had the honor of testifying. While I was no wallflower, much of the time I sat silently wishing I had a bag of popcorn, as the fireworks flew around me.

Before I even testified, Brad Smith of the Center for Competitive Politics, who was called by Republican Senators to defend the ruling, almost brought the hearing to a halt by aggressively challenging Chairman Patrick Leahy (D-VT) about whether Vermont state legislators were "freaking out" in response to Citizen United. Senator Amy Klobachar (D-MN) chimed in to say that her constituents actually were "freaking out," followed by a long chorus of other Democratic Senators (9 of the 12 Democrats on the panel were in attendance for all or part of the two and a half hour hearing), who took turns explaining why the ruling was wrong, why it was destructive of American democracy, and why the American public had every right to "freak out" about it. That led into a discussion of a series of polls that show that Americans across the political spectrum are freaking out, or at least that they really, really don't like the idea that corporations will now be able to spend unlimited amounts of money to influence the outcome of American elections.

It was sometime during a poignant line of questioning from Senator Arlen Specter, who shepherded Chief Justice John Roberts to confirmation as the Republican Chair of the Senate Judiciary Committee, and now feels bitterly betrayed by Roberts' performance as Chief Justice, that it hit me that Citizens United really has changed everything, at least in terms of the debate over the future of the courts in this country:

  • President Obama, who appeared unfocused on the judicial branch in his first year in office, has sharply picked up the pace of judicial nominations and is now taking criticism for being too outspoken in his criticism of the Supreme Court.
  • Senate Judiciary Committee Chair Patrick Leahy, who pioneered an entirely new progressive message about the courts in his support of Justice Sonia Sotomayor - combining a full-throated defense of Sotomayor's fidelity to the law, a stinging attack on the activism of the Roberts Court, and a compelling progressive narrative about the text and history of the Constitution - now seems to have all the Democrats on the Committee around to sing from the same hymnal.
  • Senate Republicans, after decades of dominating the debate over the courts with attacks on "liberal judicial activism," have been stung by opposition to Citizens United from their most ardent supporters, and have thus been reduced to asserting that the ruling is not as bad as it is being portrayed -- and to making complaints about "decorum."

While public anger about Supreme Court rulings is sometimes short-lived, that seems unlikely to be the case with Citizens United. As the shock of the ruling wears off, the actual consequences will start to emerge, with corporations exercising their newfound constitutional "right" to influence elections.

Citizens United is a very bad ruling for American democracy. But for Americans who care about the future of the courts, as everyone should, Citizens United at least has the silver lining of having changed everything in that conversation, and focused a laser-like spotlight on rulings by the Roberts Court that sharply depart from our Constitution's text and history.

Cross-posted at Text & History.

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