Five Reasons Why Citizens United Is a Truly Momentous Case

You've probably heard by now that next week the Supreme Court will break up its summer recess to hear arguments, for the second time, in Citizens United v. FEC. You may have the sense that this doesn't happen often and that something important is going on. If so, you're right and then some.

The case involves a film, Hillary: The Movie, that was produced by Citizens United, a conservative, non-profit corporation, to coincide with the 2008 presidential primary season. The case began as a fairly sleepy challenge to the Federal Election Commission's (FEC's) decision to treat the film's production and release as corporate electioneering subject to campaign finance regulations, but was transformed by an order issued by the Supreme Court on June 29th. Here are five reasons why Citizens United is now a truly momentous case:

1. President Palin, Courtesy of Chevron: Let's start with the biggest and most obvious reason this is a momentous case. Citizens United is arguing that expenditures by corporations in elections should be treated identically to those of individuals. If the Court accepts this argument, it would do away with a distinction that has been in place in our Constitution since the Founding and our statutory law since the Tillman Act of 1907 (as explained in the brief CAC filed in Citizens United), and allow corporations to spend unlimited amounts of money in elections. To appreciate how scary this change would be, consider that, according to the FEC, the Republican and Democratic parties combined spent slightly more than $1.5 billion between January 1, 2007, and December 31, 2008, while Fortune Magazine reports that the 10 most profitable companies during the same period earned combined profits of over $350 billion. This contrast reveals that unleashing even a tiny fraction of corporate profits -- from just a handful of companies -- could overwhelm the campaign system with money that represents the narrowest interests of private, profit-driven entities.

2. A Re-argued Case in September is like a Snowstorm in July: This case is loaded with Supreme Court rarities, starting with the fact that the Supreme Court failed to decide this case the first time it was heard last Term. Also rare is that the Justices have decided to come back from summer vacation a month early for a pre-Term special session in order to rehear the case, and have specifically asked the parties to brief the question of whether they should overturn not one, but two prior rulings (Austin v. Michigan Chamber of Commerce, and the parts of McConnell v. FEC that uphold regulation of corporate spending in candidate elections). Ironically, the last time the Court interrupted its summer recess for a special session was to hear one of those cases, McConnell v. FEC, six years ago. Before McConnell, the Court hadn't returned to DC for a pre-Term summer session since 1974, when in United States v. Nixon it ordered President Richard M. Nixon to surrender his secret Watergate tapes.

3. A Cast of a Thousand Stars (and a lawyer's trick you should not try at home): Citizens United will be a scene of debut performances and veteran stars of the Supreme Court. It will be the first case to come before Justice Sonia Sotomayor and the first case argued before the Supreme Court by Obama's Solicitor General Elena Kagan, who will argue on behalf of the FEC. The remaining line-up of participants in this case include the most experienced Supreme Court practitioners alive today -- former G.W. Bush Solicitor General Ted Olson (representing Citizens United), former Clinton Solicitor General Seth Waxman (representing Sen. John McCain and other backers of the 2002 McCain-Feingold Bipartisan Campaign Reform Act, or BCRA) and preeminent First Amendment litigator Floyd Abrams (representing Sen. Mitch McConnell and others who opposed BCRA). Olson will be attempting the lawyer's equivalent of a quadruple lutz: getting the Supreme Court to overrule case law he successfully convinced the justices to make just six years earlier. (As Solicitor General for President Bush, Olson defended BCRA in McConnell.)

4. The Alito Court: A lot of attention has focused in recent months on whether and how new Justice Sotomayor will change the Supreme Court. But oral arguments in Citizens United on September 9th should snap our focus back to a far more momentous change in the Court's make-up: the 2006 replacement of Justice Sandra Day O'Connor with Justice Samuel Alito. It is only over time that we are seeing how significantly that change moved the Court's center of gravity rightward. As in so many areas, Justice O'Connor emerged during her tenure as the Court's critical swing vote in campaign finance cases and in McConnell in 2003 she provided the fifth vote necessary to uphold key portions of BCRA. In Citizens United, the Court has asked the parties to brief whether important parts of Justice O'Connor's and Justice Stevens' joint opinion for the Court in McConnell should be overruled.

5. The Roberts Court and Stare Decisis: In a 2007 campaign finance case, FEC v. Wisconsin Right to Life, Inc., the Court's five conservatives mostly agreed on the merits, but clashed angrily about whether to overrule prior rulings of the Court including Austin and McConnell, with Chief Justice Roberts and Justice Alito joining together on the controlling opinion, which limits these cases without overruling them. This prompted Justice Scalia to unleash his famously acerbic pen on his new Chief, saying at one point that Roberts's "faux judicial restraint is judicial obfuscation." Citizens United will help answer a profoundly important question about whether there is in fact a meaningful difference of opinion among the conservative justices on the question of what justifies overturning prior rulings of the Supreme Court. The answer to this question will go a long way toward determining whether the Court's shift to the right will be gradual or sharp in the coming years.

To learn more about this case and others related to the progressive constitution, visit CAC's blog Text & History.

Comments

[old timer 37]

When corporations were first formed (under Queen Elizabeth), and well into the 19th century, they had 21 year charters (including banks). They were ficticious persons with term limits (unless their charters were renewed). One purpose was to prevent them from becomming more powerful institutions than the government. Another was that they were invented to enable temporary pooling of resources to achieve major projects such as toll roads, etc. The corporate boards eventually used their influence to get charters extended to our present infinite lifetime. Allowing this was government's first mistake.

Who speaks politically for the corporation: its top executives. However, for large companies the interests of the corporation and that of the top executives are not congruent. The corporation's best interests involve long term issues, the executives (especially with their huge bonuses) are interested in short term results. It's why, for example, executives at AIG were paid bonuses to buy the long term risks of credit default swaps; their paychecks were fattened while the corporation was bankrupted.

My point: The political ads taken out by corporations don't speak for the corporation, they are simply a misuse of corporate resources to give short term thinking (or prejudiced) executives a megaphone to bribe politicians for their personal objectives at no costs to themselves.

I have recently posted "Large Campaign contributions are bribes, not free speech" on my blog.

[Choicelady]

It makes about as much sense to give corporations and other organization the same standing as a human being. The 14th Amendment "gave" corporations "fictitious personhood" - if that was not "judicial activistm" nothing is. From that disgraceful decision all else falls out. Now the "fictitious person" can pony up gobs of cash to promote a candidate or cause. Think about a few years back when The Donald tried to run for president; did money make his cause better, his candidacy more clear and reasoned, his policies more useful and thought-provoking? He barely new where Japan was. Money secures huge amounts of time and space in major media - it does NOT assure the best democracy if someone with great ideas gets overwhelmed by the spending of a corporate-backed idiot. The late Molly Ivins had the right answer - let only those who can VOTE be permitted to donate. It won't keep the rich from giving cash, but it will take the worst offenders out of the game. I'm a strong union supporter, but we have to end this now. Let people take back democracy. Money is NOT free speech. Free speech is free speech.

[old timer 37]

Well said.

To be consistent the Supreme court should next rule that any corporation over 18 years of age has the vote!

If the Supreme Court overturns these prudent financial restraints on corporations, they will have taken the lead from Congress in a race to destroy our Democracy. The executive branch and congress were in a dead heat until early this year, at which time Congress had the lead all to itself.

[S1m0n]

Why stop at spending? Let's give them all the vote, too!

[slowtono]

This is what the Hub Bub is all about through out the nation on every issue. Does government belong to and act in good conscience for the people or to big business and what has become simply the overly RICH few.

[u028021]

This is a very concerning case. I would prefer we have federally paid for campaigns, absolutely no corporate or private contributions, let the candidates swim or sink on the merits of their arguments and intellect. The amount of money being spent on campaigns of all types but particularly Congressional and Executive campaigns is ridiculous!!! Debates and TV ad time can be contributed by the TV stations,and must be equal for each candidate. Otherwise it's just not going to be a fair outcome.

[bannorhill]

What part of "Congress shall make no law respecting ... abridging the freedom of speech" is unclear?

Does it make a distinction between corporate speech and private speech, or does it cover ALL speech?

If it does not cover all speech then who gets to decide what is and what is not acceptable?

Freedom of speech is freedon of speech. Like it or not. Either we have it or not.

[old timer 37]

What is clear is that the first Amendment applies to human beings; corporations were few, far between, relatively tiny and limited to 21 year lifetimes when that Amendment was adopted. Piling up fictions, including the one that the executives who spend corporate money on political ads actually speak in the best interest of their corporations, doesn't rationally justify your position.

[Rick Claypool]

Excellent article! This definitely hits it home by making that point that Citizens United conflates money with speech. Allow unlimited corporate money into elections, and no matter which party wins, the almighty dollar is the real winner. I mean, it's awful now ... (just look at how corporate interests have steamrolled health care and climate change legislation). And now, more than ever, we need to push to eliminate corporate influence, not strengthen it. Learn how to fight this madness at Public Citizen's http://DontGetRolled.org and pledge to protest on Sept. 9, 2009!

[BJFeng]

Fahrenheit 9-11 was a corporate film too, shown in corporate owned theaters and advertised with corporate money. The 527 Democratic political groups outspent the Republican ones by a factor of several times. Labor unions and the trial lawyers are free to use money without limit to defeat or support a candidate.

Corporations are hardly alone in the money game.

[velvetundergroundfan]

Thanks for your valuable insights. This is the kind of important article that we would never see mentioned in the mainstream media even though the outcome of this case could affect the future direction of America for generations to come.

[research]

public finance all elections, force broadcasters to honor their obligation to the community by running unbiased free debates and position pieces including everyone who is on the ballot.

prosecute all contributions as the bribery they are.

let the corporations run all the for pay advertisements and lies they want.

[aspiecelia]

Just goes to show how our court system is manipulated for certain intereste groups.

[Hawkman4]

For judges, what is the law, and what is justice?

What is doing the bidding of your political base and what is doing what is right?

Is the judicial branch a check on executive power, or is it just a joke?

[Gidster]

The current court is seated with 5 activist judges who will vote in favor of corporate sponsorship of America...