When Citizens United v. Federal
Election Commission was first argued before the Supreme Court, on March
24, 2009, it seemed like a case of modest importance. The issue before
the Justices was a narrow one. The McCain-Feingold campaign-finance law
prohibited corporations from running television commercials for or
against Presidential candidates for thirty days before primaries. During
that period, Citizens United, a nonprofit corporation, had wanted to
run a documentary, as a cable video on demand, called “Hillary: The
Movie,” which was critical of Hillary Clinton. The F.E.C. had prohibited
the broadcast under McCain-Feingold, and Citizens United had challenged
the decision. There did not seem to be a lot riding on the outcome.
After all, how many nonprofits wanted to run documentaries about
Presidential candidates, using relatively obscure technologies, just
before elections?
Chief Justice John G. Roberts, Jr., summoned
Theodore B. Olson, the lawyer for
Citizens United, to the podium.
Roberts’s voice bears a flat-vowelled trace of his origins, in Indiana.
Unlike his predecessor,
William Rehnquist, Roberts rarely shows
irritation or frustration on the bench. A well-mannered Midwesterner, he
invariably lets one of his colleagues ask the first questions.
That
day, it was
David Souter, who was just a few weeks away from announcing
his departure from the Court. In keeping with his distaste for
Washington, Souter seemed almost to cultivate his New Hampshire accent
during his two decades on the Court. In response to Souter’s questions,
Olson made a key point about how he thought the case should be resolved.
In his view, the prohibitions in
McCain-Feingold applied only to
television commercials, not to ninety-minute documentaries. “This sort
of communication was not something that Congress intended to prohibit,”
Olson said. This view made the case even more straightforward. Olson’s
argument indicated that there was no need for the Court to declare any
part of the law unconstitutional, or even to address the First Amendment
implications of the case. Olson simply sought a judgment that
McCain-Feingold did not apply to documentaries shown through video on
demand.
The Justices settled into their usual positions. The
diminutive
Ruth Bader Ginsburg was barely visible above the bench.
Stephen Breyer was twitchy, his expressions changing based on whether or
not he agreed with the lawyer’s answers. As ever,
Clarence Thomas was
silent. (He was in year three of his now six-year streak of not asking
questions.)
Then
Antonin Scalia spoke up. More than anyone, Scalia
was responsible for transforming the dynamics of oral arguments at the
Supreme Court. When Scalia became a Justice, in 1986, the Court sessions
were often somnolent affairs, but his rapid-fire questioning spurred
his colleagues to try to keep pace, and, as Roberts said, in a tribute
to Scalia on his twenty-fifth anniversary as a Justice, “the place
hasn’t been the same since.” Alternately witty and fierce, Scalia
invariably made clear where he stood.
He had long detested
campaign-spending restrictions, frequently voting to invalidate such
statutes as violations of the First Amendment. For this reason, it
seemed, Scalia was disappointed by the limited nature of Olson’s claim.
“So you’re making a statutory argument now?” Scalia said.
“I’m making a—” Olson began.
“You’re saying this isn’t covered by it,” Scalia continued.
That’s
right, Olson responded. All he was asking for was a ruling that the law
did not prohibit this particular documentary by this nonprofit
corporation during those thirty days. If the Justices had resolved the
case as Olson had suggested, today
Citizens United might well be
forgotten—a narrow ruling on a remote aspect of campaign-finance law.
Instead, the oral arguments were about to take the case—and the law—in an entirely new direction.
Supreme
Court cases become landmarks in different ways. Lawrence v. Texas, the
2003 gay-rights decision striking down anti-sodomy laws, began with a
trivial contretemps in an apartment building just outside Houston. On
the other hand, the importance of the constitutional challenge to the
Affordable Care Act, the signature domestic achievement of the Obama
Presidency, was apparent as soon as it was filed. (A decision is
expected in June.) The result in Bush v. Gore was important, but the
reasoning turned out to be perishable; the decision has not been cited
again by the Justices.
In one sense, the story of the
Citizens
United case goes back more than a hundred years. It begins in the
Gilded
Age, when the Supreme Court barred most attempts by the government to
ameliorate the harsh effects of market forces. In that era, the Court
said, for the first time, that corporations, like people, have
constitutional rights.
The Progressive Era, which followed, saw the
development of activist government and the first major efforts to limit
the impact of money in politics. Since then, the sides in the continuing
battle have remained more or less the same:
progressives (or liberals)
vs. conservatives, Democrats vs. Republicans, regulators vs.
libertarians. One side has favored government rules to limit the
influence of the moneyed in political campaigns; the other has supported
a freer market, allowing individuals and corporations to contribute as
they see fit.
Citizens United marked another round in this contest.
In
a different way, though,
Citizens United is a distinctive product of
the
Roberts Court. The decision followed a lengthy and bitter
behind-the-scenes struggle among the Justices that produced both secret
unpublished opinions and a rare
re-argument of a case. The case, too,
reflects the aggressive conservative
judicial activism of the Roberts
Court. It was once liberals who were associated with using the courts to
overturn the work of the democratically elected branches of government,
but the current Court has matched contempt for Congress with a disdain
for many of the Court’s own precedents. When the Court announced its
final ruling on
Citizens United, on January 21, 2010, the vote was five
to four and the majority opinion was written by
Anthony Kennedy. Above
all, though, the result represented a triumph for Chief Justice Roberts.
Even without writing the opinion, Roberts, more than anyone, shaped
what the Court did. As American politics assumes its new form in the
post-
Citizens United era, the credit or the blame goes mostly to him.
Floyd
Brown had worked around the fringes of the conservative movement for
years before he became famous, in 1988. He was the political director of
an independent campaign committee called Americans for Bush, which
produced and broadcast a commercial featuring Willie Horton, a convicted
murderer who received a weekend furlough in Massachusetts and then
committed several grisly crimes. When the election was over, Americans
for Bush had outlived its usefulness. So Brown embraced the notoriety
that came with the co–authorship of the Willie Horton ad, and founded a
new organization. He called it Citizens United.
Brown acquired a
sidekick, a recent dropout from the University of Maryland named
David
Bossie. Bossie also had a passion for conservative politics and, like
Brown, an entrepreneurial bent. In 1992, Brown appointed Bossie his
“chief researcher,” and they narrowed their focus to publicizing harsh
critiques of the personal and financial affairs of
Bill and Hillary
Clinton.
Eight years later, with the inauguration of
George W. Bush, the
public profile of
Citizens United receded. Bossie, who had become
president of the group in 2000, thought that it needed a niche to
distinguish it from the other conservative organizations in Washington.
Bossie’s revelation came in 2004, when he first saw advertisements for
Michael Moore’s movie
“Fahrenheit 9/11.” Bossie recognized that the
documentary was doing a kind of double duty. “Fahrenheit 9/11” and the
television commercials promoting it were at once political salvos
against the reelection of President Bush and a potential source of
profit.
Bossie decided to transform
Citizens United into a movie
studio, which would produce conservative documentaries. In the period
leading up to the 2008 election, the Presidential candidacy of Hillary
Clinton was an irresistible subject, given Bossie’s long history of
opposing her and her husband. “Hillary: The Movie” was typical of the
Citizens United oeuvre. It included news footage, spooky music, and a
series of interviews with dedicated and articulate partisans. (“She’s
driven by the power, she’s driven to get the power, that is the driving
force in her life,”
Bay Buchanan, the activist and the sister of
Pat
Buchanan, said. “She’s deceitful, she’ll make up any story, lie about
anything, as long as it serves her purposes of the moment, and the
American people are going to catch on to it,”
Dick Morris, the estranged
former Clinton Administration adviser, said. “ ‘Liar’ is a good one,”
Ann Coulter said.)
Bossie wanted “Hillary: The Movie” to come out
in late 2007, to tie it to the Presidential election in the way that
Moore had pegged “Fahrenheit 9/11” to the previous race. A cable company
offered, at a cost of $1.2 million to
Citizens United, to make
“Hillary” available for free to viewers, on video on demand. Bossie also
engineered a small run of the movie in theatres, but his real
priorities were television advertisements and video on demand. Over the
years, Bossie had become familiar with federal election law, so he
decided he needed a lawyer, and hired
James Bopp, Jr.
Bopp was
raised in Terre Haute, Indiana, and in 1970 he graduated from Indiana
University, where he headed the chapter of
Young Americans for Freedom,
the student group that propelled many Republican careers. After
graduating from the University of Florida law school, he returned to
Indiana to practice law in 1973, the year of
Roe v. Wade. He decided to
join the fledgling anti-abortion movement, and was hired as the general
counsel to the Indiana chapter of the
National Right to Life Committee.
In 1978, Bopp became the general counsel to the full
National Right to
Life Committee.
In 1980, the group issued a series of “voter
guides” before Election Day. Some have credited the guides with helping
to create the landslide that put
Ronald Reagan in the White House and
twelve new Republicans in the Senate. They were barely concealed works
of advocacy, and the F.E.C. later tried to ban them. Bopp won a First
Amendment challenge to the prohibition, and began working actively to
challenge campaign-finance restrictions as well as abortion rights.
In
2002, Congress passed the
Bipartisan Campaign Reform Act, usually
called the
McCain-Feingold law, after its original sponsors. One of the
primary targets of the new law was the increasingly meaningless
distinction between candidate advertisements and “issue” advertisements.
For years, individuals, corporations, and labor unions had spent
millions on ads that denounced candidates but technically avoided the
specific language that turned a commercial into a “campaign” ad.
McCain-Feingold sought to address this problem by prohibiting corporate
and union funding of broadcast ads mentioning a candidate within thirty
days of a primary or a caucus or within sixty days of a general
election.
The
McCain-Feingold law prompted the right-to-life group
in Wisconsin to go to Bopp with a problem. The state had two Democratic
senators,
Russell Feingold and
Herb Kohl, who supported abortion
rights. In the run-up to the election of 2004, when Feingold was on the
ballot, the right-to-life group wanted to run radio and television ads
that addressed his record of opposing Bush’s judicial nominees. The ads
were artfully designed to challenge Feingold without specifically
discouraging a vote for him. In that way, they looked like “issue” ads,
but because they ran before an election they were prohibited by the
McCain-Feingold law.
Bopp wanted to argue that the
McCain-Feingold ban on issue advertisements violated the First
Amendment. But in 2003, in one of the last major opinions of the
Rehnquist Court, the Justices had upheld most of the law against a
constitutional challenge led by
Mitch McConnell, a Republican leader in
the Senate and a dedicated foe of all campaign-finance reform. (The case
was known as
McConnell v. Federal Election Commission.)
How
could Bopp challenge a law that had just been upheld? He knew that the
2003 case was a challenge to
McCain-Feingold “on its face”—that is, a
claim that the law was going to be unconstitutional in all
circumstances. A new case would challenge the law “as applied” against
Wisconsin Right to Life. He would claim that this specific application
of the law violated the group’s First Amendment rights. And Bopp didn’t
wait around for the F.E.C. (a notoriously slow-moving agency) to charge
his clients. Rather, he decided to bring a preemptive lawsuit objecting
to the ban on issue advertisements before elections.
Bopp knew
that he had an important advantage over the failed challenge to
McCain-Feingold in 2003. As part of a five-to-four majority,
Sandra Day
O’Connor had voted to uphold most of the law, but she had been succeeded
by
Samuel A. Alito, Jr.
Bopp’s confidence turned out to be
justified. When
Federal Election Commission v. Wisconsin Right to Life
was decided, in 2007, the Court voted five to four to overturn the
limits on the advertisements. Roberts, Scalia, Kennedy, Thomas, and
Alito found the restriction on
Wisconsin Right to Life unconstitutional;
John Paul Stevens, Souter, Ginsburg, and Breyer would have upheld the
ban on the commercials.
Chief Justice Roberts assigned the
opinion to himself. He was still trying to prove that he was cautious
and respectful of precedent, as he had claimed to be during his 2005
confirmation hearing. But now he was part of a majority that was, in
effect, gutting a four-year-old opinion. Roberts completed this mission
with typical finesse, declaring that “the First Amendment requires us to
err on the side of protecting political speech rather than suppressing
it.” Roberts did not explicitly call for overturning
McCain-Feingold,
but he left little doubt where the Court was heading. Referring to the
McConnell case, the 2003 decision upholding the law, Roberts wrote, “We
have no occasion to revisit that determination today.”
“Today.”
To those who know the language of the Court, the Chief Justice was all
but announcing that five Justices would soon declare the
McCain-Feingold
law unconstitutional.
Bopp again took an
aggressive tack when he began representing David Bossie’s Citizens
United group in its effort to broadcast the “Hillary” documentary. The
movie had multiple purposes: to advance the conservative cause, to hurt
Hillary Clinton’s chances for victory, and to make money. The question,
then, was how the F.E.C. would classify the movie and the advertisements
for it. Under the F.E.C. rules, if “Hillary” was deemed a work of
journalism or entertainment, like “Fahrenheit 9/11,” Bossie could show
it anytime he wanted. But if the F.E.C. regarded “Hillary” and
commercials for it as an “electioneering communication”—that is, as
“speech expressly advocating the election or defeat of a candidate”—then
it could not be broadcast during the proscribed election periods.
Bossie
went straight to the F.E.C. to get a ruling on “Hillary.” As expected,
the F.E.C. ruled that the documentary amounted to an “electioneering
communication.” The group then appealed to the federal district court in
Washington. A three-judge panel agreed with the F.E.C., holding that
the movie “ is susceptible of no other interpretation than to inform the
electorate that Senator Clinton is unfit for office, that the United
States would be a dangerous place in a President Hillary Clinton world,
and that viewers should vote against her.”
Bossie was determined
to appeal to the Supreme Court, and at this point he decided to change
lawyers. Bossie may have arrived in Washington as a flame-throwing
outsider, but during the previous decade he had become part of the
conservative establishment. He knew that Bopp had just won the Wisconsin
Right to Life case before the Justices, but Bossie’s financial life and
potentially his place in history were on the line in
Citizens United.
He wasn’t going to leave his fate in the hands of a lawyer from Terre
Haute.
Instead, he asked Theodore Olson to take the case. Olson
was a titanic figure in conservative legal circles. Bossie first met him
in the nineties, when Olson and his wife, Barbara, were outspoken
fellow-critics of Bill Clinton. (Barbara Olson was killed on the plane
that crashed into the Pentagon on September 11, 2001.) As a lawyer at
the firm of Gibson, Dunn & Crutcher, Ted Olson had argued and won
Bush v. Gore, and was rewarded by President Bush with an appointment as
Solicitor General. Olson had argued before the Supreme Court dozens of
times, and he had a great deal of credibility with the Justices. He knew
how to win.
Olson, a litigator more than an activist, quickly
shifted tactics in the case. He tried to narrow the issues in
Citizens
United, so that the Court would not have to take any dramatic steps in
order to rule his way. He did not focus his challenge on the
constitutionality of
McCain-Feingold; he simply said, as he told the
Justices at the oral argument, that the law did not apply to
documentaries broadcast with video-on-demand technology, only to
commercials. Then
Malcolm Stewart, the Deputy Solicitor General, rose to
offer his rebuttal, and a single question changed the case, and perhaps
American history.
Whenever the federal
government is involved in litigation before the Supreme Court, the
Office of the Solicitor General handles the representation. In an age
when the reputations of many government agencies have suffered, the
Solicitor General’s office has remained a symbol of excellence: small,
élite, and respected by its most important audience, the Justices.
Since
the position of Solicitor General was created, in 1870, some of the
most distinguished lawyers in the country’s history have served in it.
William Howard Taft, before he became President and then Chief Justice,
was an early S.G., and
Franklin Roosevelt put two of his Solicitors
General,
Stanley Reed and
Robert H. Jackson, on the Supreme Court. In
the sixties and seventies, the office was consecutively occupied by
Archibald Cox, Thurgood Marshall, Erwin Griswold (previously the
longtime dean of Harvard Law School), and
Robert Bork.
Kenneth Starr
stepped down from a judgeship in the D.C. Circuit to be
George H. W.
Bush’s S.G.
For all that the Solicitor General serves as the
public face of the office, and as an important senior political
appointee, the career employees act as its principal representatives to
the Court. Only two of the twenty-two lawyers in the office are
political appointees, so most move seamlessly from one Administration to
the next.
By tradition, the S.G. staff operates according to a
different standard from that of the hired guns who generally appear
before the Supreme Court. The Solicitor General’s lawyers press their
arguments in a way that hews strictly to existing precedent. They don’t
hide unfavorable facts from the Justices. They are straight shooters.
This is why, in many cases, even when the federal government is not a
party, the Court issues what’s known as a
C.V.S.G.—a
call for the views
of the Solicitor General. The lawyers in the S.G.’s office are not
neutral, but they are more highly respected than other advocates. They
dress differently, too, wearing a morning coat, vest, and striped pants
when they appear in the Supreme Court.
Malcolm Stewart, the lawyer
in the Solicitor General’s office who argued the
Citizens United case,
embodied the best of the office. A graduate of Princeton and then Yale
Law School, he had clerked for
Harry Blackmun in the 1989 term. He
joined the Solicitor General’s office in 1993, and his career thrived
through three Presidencies and more than forty oral arguments. He twice
won a John Marshall Award, one of the highest honors in the department.
Shortly before the
Citizens United argument, Stewart had been named a
Deputy Solicitor General, the highest rank for a career lawyer.
The
Justices say that oral arguments rarely make a difference in the
outcome of cases. But in
Citizens United Stewart’s appearance was an
epic disaster.
On the day of Citizens United,
Samuel Alito appeared miserable, as usual. Alito enjoyed his job well
enough, but he was uncomfortable with its public aspects. He liked
reading cases and making decisions. He disliked pomp and bureaucracy.
(Alito didn’t even like hiring law clerks. For years, he chose clerks
who had worked for him on the Third Circuit, so that he wouldn’t have to
interview new ones.) After Thomas, Alito tended to ask the fewest
questions of any Justice. But no Justice asked better questions than
Alito. It was easy to tell which way Alito was leaning, because his
questions were so hard for the lawyer he was targeting to answer. Alito
had radar for weak points in a presentation, and in this case he saw a
hole in Malcolm Stewart’s.
Alito wanted to push Stewart down a
slippery slope. Since
McCain-Feingold forbade the broadcast of
“electronic communications” shortly before elections, this was a case
about movies and television commercials. What else might the law
regulate? “Do you think the Constitution required Congress to draw the
line where it did, limiting this to broadcast and cable and so forth?”
Alito said. Could the law limit a corporation from “providing the same
thing in a book? Would the Constitution permit the restriction of all
those as well?”
Yes, Stewart said: “Those could have been applied to additional media as well.”
The
Justices leaned forward. It was one thing for the government to
regulate television commercials. That had been done for years. But a
book? Could the government regulate the content of a book?
“That’s
pretty incredible,” Alito responded. “You think that if a book was
published, a campaign biography that was the functional equivalent of
express advocacy, that could be banned?”
“I’m not saying it could
be banned,” Stewart replied, trying to recover. “I’m saying that
Congress could prohibit the use of corporate treasury funds and could
require a corporation to publish it using its—” But clearly Stewart was
saying that
Citizens United, or any company or nonprofit like it, could
not publish a partisan book during a Presidential campaign.
Kennedy
interrupted. He was the swing Justice in many areas of the law, but
joined the conservatives in all the campaign-spending cases. Sensing
vulnerability on the subject of books, he joined Alito’s assault.
“Well,
suppose it were an advocacy organization that had a book,” Kennedy
said. “Your position is that, under the Constitution, the advertising
for this book or the sale for the book itself could be prohibited within
the sixty- and thirty-day periods?”
Stewart’s answer was a reluctant, qualified yes.
But
neither Alito nor Kennedy had Roberts’s instinct for the jugular. The
Chief Justice wanted to make Stewart’s position look as ridiculous as
possible. Roberts continued on the subject of the government’s
censorship of books, leading Stewart into a trap.
“If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asked.
“That’s correct,” Stewart said.
“If it’s a five-hundred-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Roberts asked.
“Well,
if it says ‘vote for X,’ it would be express advocacy and it would be
covered by the preexisting
Federal Election Campaign Act provisions,”
Stewart continued, doubling down on his painfully awkward position.
Through
artful questioning, Alito, Kennedy, and Roberts had turned a fairly
obscure case about campaign-finance reform into a battle over government
censorship. The trio made Stewart—and thus the government—take an
absurd position: that the government might have the right to criminalize
the publication of a five-hundred-page book because of one line at the
end. Still, the Justices’ questioning raised important issues. Based on
the theory underlying
McCain-Feingold, could Congress pass any law to
ban a book? And was Stewart right to acknowledge that it did?
Stewart
was wrong. Congress could not ban a book.
McCain-Feingold was based on
the pervasive influence of television advertising on electoral politics,
the idea that commercials are somehow unavoidable in contemporary
American life. The influence of books operates in a completely different
way. Individuals have to make an affirmative choice to acquire and read
a book. Congress would have no reason, and no justification, to ban a
book under the First Amendment.
As for Stewart’s performance, his
defenders pointed to the unique role of the Solicitor General. A
private lawyer could have danced around the implications of the law and
avoided making any concession, but Stewart had a special obligation to
be straight with the Justices, even if the answers hurt his cause.
Stewart’s critics—and there were many—said that he had no obligation to
try to answer an absurdly far-fetched hypothetical involving the
censorship of books. By doing so, according to this view, Stewart wasn’t
being honest—he was being foolish. He should have asserted that the
federal government had neither the obligation nor the right to stop the
publication of a book. Like most arguments about the quality of
advocacy, this one had no clear resolution. Evidently, though, the
damage to the government’s case had been profound.
At
this point, the vagaries of the Supreme Court calendar played a part in
the resolution of the case. Citizens United was argued near the end of
the term, in late March. (The last arguments are usually at the end of
April, and the decisions are released by the end of June.) So there was
not a lot of time for the Justices to reach a consensus. At their
initial conference, the vote was the same as for Wisconsin Right to
Life, with Kennedy joining the four other conservatives.
A private
drama followed which in some ways defined the new Chief Justice to his
colleagues. Roberts assigned the
Citizens United opinion to himself.
Even though the oral argument had been dramatic, Olson had presented the
case to the Court in a narrow way. According to the briefs in the
case—and Olson’s argument—the main issue was whether the
McCain-Feingold
law applied to a documentary, presented on video on demand, by a
nonprofit corporation. The liberals lost that argument: the vote at the
conference was that the law did not apply to
Citizens United, which was
free to advertise and run its documentary as it saw fit. The liberals
expected that Roberts’ opinion would say this much and no more.
At
first, Roberts did write an opinion roughly along those lines, and
Kennedy wrote a concurrence which said the Court should have gone much
further. Kennedy’s opinion said the Court should declare
McCain-Feingold’s restrictions unconstitutional, overturn an earlier
Supreme Court decision from 1990, and gut long-standing prohibitions on
corporate giving. But after the Roberts and Kennedy drafts circulated,
the conservative Justices began rallying to Kennedy’s more expansive
resolution of the case. In light of this, Roberts withdrew his own
opinion and let Kennedy write for the majority. Kennedy then turned his
concurrence into an opinion for the Court.
The new majority
opinion transformed
Citizens United into a vehicle for rewriting decades
of constitutional law in a case where the lawyer had not even raised
those issues. Roberts’s approach to
Citizens United conflicted with the
position he had taken earlier in the term. At the argument of a
death-penalty case known as
Cone v. Bell, Roberts had berated at length
the defendant’s lawyer,
Thomas Goldstein, for his temerity in raising an
issue that had not been addressed in the petition. Now Roberts was
doing nearly the same thing to upset decades of settled expectations.
As
the senior Justice in the minority, John Paul Stevens assigned the main
dissent to Souter, who was working on the opinion when he announced his
departure, on April 30th. Souter wrote a dissent that aired some of the
Court’s dirty laundry. By definition, dissents challenge the legal
conclusions of the majority, but
Souter accused the Chief Justice of
violating the Court’s own procedures to engineer the result he wanted.
Roberts
didn’t mind spirited disagreement on the merits of any case, but
Souter’s attack—an extraordinary, bridge-burning farewell to the
Court—could damage the Court’s credibility. So the Chief came up with a
strategically ingenious maneuver. He would agree to withdraw Kennedy’s
draft majority opinion and put
Citizens United down for re-argument, in
the fall. For the second argument, the Court would write new
Questions
Presented, which frame a case before argument, and there would be no
doubt about the stakes of the case. The proposal put the liberals in a
box. They could no longer complain about being sandbagged, because the
new
Questions Presented would be unmistakably clear. But, as Roberts
knew, the conservatives would go into the second argument already having
five votes for the result they wanted. With no other choice (and no
real hope of ever winning the case), the liberals agreed to the re-argument.
On June 29, 2009, the last day of the term, the Court
shocked the litigants—and the political world—by announcing, “The case
is restored to the calendar for re-argument.” The parties were directed
to file new briefs. In plain English, the Court’s order told the parties
that the Justices were considering overruling two major decisions in
modern campaign-finance law. Most important, the Court was weighing
whether to overturn its endorsement of
McCain-Feingold in the McConnell
case of 2003. As every sophisticated observer of the Court knew, the
Court did not ask whether cases should be overruled unless a majority of
the Justices were already prepared to do so. And Roberts and his allies
were so impatient to overturn these precedents that they were not even
going to wait for the first Monday in October. (An early argument would
also put a decision in place well before the 2010 elections.) The second
argument in
Citizens United was set for September 9, 2009.
The
Supreme Court first addressed the struggle over money and politics in a
peculiar, almost backhanded way. In 1886, just before the oral argument
in an obscure and uncontroversial tax case called Santa Clara County v.
Southern Pacific Railroad, Chief Justice Morrison R. Waite told the
lawyers, “The court does not want to hear argument on the question
whether the provision in the Fourteenth Amendment to the Constitution . .
. applies to these corporations. We are all of opinion that it does.”
In 1978, as then Justice Rehnquist described the Santa Clara case, “This
Court decided at an early date, with neither argument nor discussion,
that a business corporation is a ‘person’ entitled to the protection of
the Equal Protection Clause of the Fourteenth Amendment.”
The
historical context for the Court’s decision was clear. In the aftermath
of the
Civil War, the Court remained what it had been before the war—a
very conservative institution. During
Reconstruction, Congress and the
states passed three new Amendments to the Constitution—the Thirteenth,
the Fourteenth, and the Fifteenth—to give the newly freed slaves the
full rights of citizenship. Almost immediately, the Supreme Court did
its best to undermine these new provisions. At the same time, the
Justices became accomplices in the excesses of the Gilded Age. In a
series of cases, including Santa Clara, the Court thwarted attempts by
state and local governments to restrain commercial and corporate
interests.
This period of the Court’s history led into what is
known as the
Lochner era, for the most famous case of its day. In an
early attempt to protect workers from exploitation, New York passed a
law prohibiting bakery employees from working more than sixty hours a
week or ten hours a day. In
Lochner v. New York (1905), the Court
declared the state law unconstitutional, on the ground that it
interfered with the “right of contract” of both the employer and the
employee. For a five-to-four majority,
Justice Rufus Peckham found the
New York law an “unreasonable, unnecessary and arbitrary interference
with the right of the individual to his personal liberty or to enter
into those contracts in relation to labor which may seem to him
appropriate or necessary for the support of himself and his family.” In
simple terms, the majority in
Lochner turned the Fourteenth Amendment,
which was enacted to protect the rights of newly freed slaves, into a
mechanism to advance the interest of business owners. The Court
basically asserted that most attempts to regulate the private
marketplace, or to protect workers, were unconstitutional. The
Lochner
era reflected conservative judicial activism, which has a long history
at the Court. The decisions of the nineteen-thirties, which rejected
central aspects of Franklin Roosevelt’s
New Deal, also showed how
conservative Justices would overrule the democratically elected
branches. It was only in the
Warren Court era, in the fifties and
sixties, that liberal judicial activism became a force at the Court, as
the Justices began overturning laws that violated the rights of
minorities and women.
The conservatism of the
Lochner era at the
Supreme Court, and in the broader political world, generated a backlash.
Antitrust legislation, food-safety rules, child-labor laws, woman’s
suffrage, a tax on income—all came together under the broad rubric of
Progressivism. Theodore Roosevelt, who became President in 1901, made
the movement his own.
Roosevelt won a landslide victory in 1904,
helped in part by vast campaign contributions from corporations. He drew
heavily from railroad and insurance interests, and in the last days
before the election he reportedly made a personal appeal for funds to
Henry Clay Frick, the steel baron, and other industrialists. Years
later, Frick recalled of Roosevelt, “He got down on his knees to us. We
bought the son-of-a-bitch and then he did not stay bought.” Almost as
soon as Roosevelt won the election, he turned his attention to passing
the first significant campaign-finance-reform act in American
history—trying to outlaw the very techniques he had just used to stay in
office.
In 1907, Congress passed the
Tillman Act, named for the
eccentric rogue
Pitchfork Ben Tillman, the South Carolina senator who
sponsored the legislation. The law barred corporations from contributing
directly to federal campaigns, and established criminal penalties for
violations. Loopholes proliferated, allowing, for example, individuals
to give as much as they wanted to political campaigns and to be
reimbursed for the contributions by their employers. Still, the
Tillman
Act was a first step toward what Congress described as its goal:
elections “free from the power of money.”
That
never happened. In subsequent decades, the power of money in politics
only grew. After the Second World War, candidates began to campaign
principally by buying advertisements on television, and that strategy
created an ever-increasing need for cash. Richard Nixon’s obsession with
campaign fund-raising was one of the principal motivations that led to
the Watergate scandals.
Watergate precipitated the next wave of
campaign-finance reform, the
Federal Election Campaign Act Amendments of
1974, which supplemented the 1971 law and created much of the
regulatory structure that endures today. The law imposed unprecedented
limits on campaign contributions and spending; created the Federal
Election Commission to enforce the act; established an optional system
of public financing for Presidential elections; and required extensive
disclosure of campaign contributions and expenditures.
Shortly
after it went into effect, a group of politicians, including
James L.
Buckley, then a senator from New York, and
Eugene McCarthy, the former
senator and Presidential candidate, challenged the new rules as
unconstitutional. The resulting decision, known as
Buckley v. Valeo,
issued in 1976, has gone down in history as one of the Supreme Court’s
most complicated, contradictory, incomprehensible (and longest)
opinions.
To this day, no one even knows who really wrote it. It
is signed “
per curiam”—“by the Court”—which the Justices usually use for
brief and minor opinions. In
Buckley v. Valeo, however, the label was
used by the Court to signal a team effort, of sorts.
William Brennan is
generally regarded to have written much of
Buckley, but Brennan’s
biographers note that sections were also composed by
Warren E. Burger,
Potter Stewart, Lewis Powell, and William Rehnquist. Not surprisingly,
in light of the multiple authors, the opinion is a product of several
compromises.
At its center is a distinction between expenditures
and contributions. The Court said that, under the First Amendment,
Congress could not restrict campaign expenditures. Spending money was
like speech itself, because “every means of communicating ideas in
today’s mass society requires the expenditure of money.” That included
printing handbills, renting halls, and buying ads on television. It is a
result of
Buckley that wealthy candidates like
Mayor Michael Bloomberg
can spend as much as they want of their own money on their campaigns; it
would be unconstitutional to limit their expenditures.
But,
according to
Buckley, limits on contributions were constitutionally
permissible. The Court said that a campaign contribution served only as
“a general expression of support for the candidate and his views, but
does not communicate the underlying basis for the support.” In the
Court’s view, limiting contributions did not significantly inhibit
political expression by the person giving the money. This was why the
Court concluded that it was permissible for the law to limit how much an
individual could contribute to any particular campaign.
In the
1974 law, Congress had tried to set up a tightly controlled system for
financing campaigns: the government would monitor and regulate both the
inflows and the outflows of money. It is not clear that the proposal
would have worked as intended, but at least it made holistic sense.
Congress could essentially select a number for the over-all price of a
congressional or Presidential campaign, and then force candidates to
live within that number.
Buckley ended that system before it even
started, and imposed a different one, of the Justices’ own creation. The
court declared that contributions could be limited but expenditures
could not, and for two generations that distinction has been the central
feature of the constitutional rules of campaign finance. The bottom
line was that money is speech.
On the morning
of September 9, 2009, a car arrived outside the Justice Department to
take the government’s team to the Supreme Court for the re-argument of
Citizens United. Elena Kagan, the Solicitor General, took the front
seat, and three of her deputies piled into the back. She had been
confirmed by the Senate a few days before the first Citizens United
argument, and the re-argument would mark her début before the Justices.
Kagan, at the age of forty-eight, had never argued a case before an
appellate court. Citizens United would be the first time.
“C’mon, guys,” she said to those in the back. “It’s my first day. Psych me up!”
The deputies looked at one another, and, after a lengthy pause, one whispered, “Go get ’em.”
“Ugh,” Kagan said. “You guys suck
!”—and the laughter broke the tension in the car.
At
precisely ten o’clock, the Chief Justice called Ted Olson to the
lectern. Like everyone associated with the case, Olson could tell from
the new
Questions Presented that the Court was leaning his way—heading
for a ruling that was far broader than the one he had originally sought.
Olson argued cautiously, as if protecting a lead. The liberal quartet
of Justices, recognizing that their position was probably hopeless, did
their best to raise the alarm with the public, if not with their
colleagues. Ginsburg brought up one potential source of future
controversy.
“Mr. Olson,” Ginsburg said, “are you taking the
position that there is no difference” between the First Amendment rights
of a corporation and those of an individual? “A corporation, after all,
is not endowed by its creator with inalienable rights. So is there any
distinction that Congress could draw between corporations and natural
human beings for purposes of campaign finance?”
“What the Court
has said in the First Amendment context . . . over and over again,”
Olson replied, “is that corporations are persons entitled to protection
under the First Amendment.”
“Would that include today’s
mega-corporations, where many of the investors may be foreign
individuals or entities?” Ginsburg went on.
Olson was ready: “The
Court in the past has made no distinction based upon the nature of the
entity that might own a share of a corporation.”
The questioning
turned to Kagan. Like many members of the S.G.’s office, Kagan thought
that the women’s version of the morning coat looked ridiculous. Through
intermediaries, she had asked the Justices if they would mind if she
appeared in a normal business suit. None objected, and that was what she
wore.
“Mr. Chief Justice, and may it please the Court,” Kagan
began, “I have three very quick points to make about the government
position. The first is that this issue has a long history. For over a
hundred years Congress has made a judgment that corporations must be
subject to special rules when they participate in elections, and this
Court has never questioned that judgment.
“Number 2—”
“Wait, wait, wait, wait,” Scalia said.
Given
the circumstances, Kagan must have known that she had launched herself
on a suicide mission. Her best hope was to limit the damage, perhaps by
persuading the Court to strike down this particular application of
McCain-Feingold rather than invalidate the entire law. Or, as Kagan put
it to Roberts, “Mr. Chief Justice, as to whether the government has a
preference as to the way in which it loses, if it has to lose, the
answer is yes.”
As the argument proceeded, Stevens tried to help
Kagan along these lines, suggesting that the Court could resolve the
case with a narrow ruling. For example, the Justices could create an
exception in the
McCain-Feingold law for nonprofits like
Citizens
United, or for “ads that are financed exclusively by individuals even
though they are sponsored by a corporation.” Grasping the Stevens
lifeline, Kagan said, more or less, “Yes, that’s exactly right.”
“Nobody
has explained why that wouldn’t be a proper solution, not nearly as
drastic,” Stevens went on. “Why is that not the wisest narrow solution
of the problem before us?”
Ginsburg did Kagan the favor of
allowing her to undo some of the damage from Stewart’s argument in
March. “May I ask you one question that was highlighted in the prior
argument, and that was if Congress could say no TV and radio ads, could
it also say no newspaper ads, no campaign biographies?” Ginsburg said.
“Last time, the answer was yes, Congress could, but it didn’t. Is that
still the government’s answer?”
“The government’s answer has
changed, Justice Ginsburg,” Kagan replied, and the well-informed
audience in the courtroom laughed. “We took the Court’s own reaction to
some of those other hypotheticals very seriously. We went back, we
considered the matter carefully.” Kagan said that Congress could not ban
a book. But the damage had been done.
After
the second argument of Citizens United, the votes were the same as after
the first one. Roberts, Scalia, Kennedy, Thomas, and Alito voted to
overturn the judgment of the F.E.C., with Stevens, Ginsburg, Breyer, and
Sonia Sotomayor (who had replaced Souter) on the other side. Because of
the much broader Questions Presented, Roberts was now well within his
rights to resurrect the earlier draft opinion and lead the charge to
bury decades of campaign-finance law.
So, as the Chief Justice
chose how broadly to change the law in this area, the real question for
him, it seems, was how much he wanted to help the Republican Party.
Roberts’ choice was: a lot.
Roberts assigned the opinion in
Citizens United to Anthony Kennedy. It was another brilliant strategic
move. When Alito replaced O’Connor, in 2006, the Court was locked into a
consistent four-four conservative-liberal split, and Kennedy became the
most powerful Justice in decades. On controversial issues—including
abortion, affirmative action, civil rights, the death penalty, and
federal power, among others—he controlled the outcome of cases. For the
previous twenty years or so, O’Connor had most often held the swing
vote, though she never controlled as many cases as Kennedy has.
There
was a striking difference in the ways that O’Connor and Kennedy handled
being the swing vote. O’Connor was a gradualist, a compromiser, a
politician who liked to make each side feel that it won something. When
she was in the middle in a case, she would, in effect, give one side
fifty-one per cent and the other forty-nine. In
Planned Parenthood of
Southeastern Pennsylvania v. Casey, in 1992, she saved abortion rights;
in
Grutter v. Bollinger, in 2003, she preserved racial preferences in
admissions for the University of Michigan law school; in
Rasul v. Bush
and
Hamdi v. Rumsfeld, in 2004, she repudiated the Bush Administration’s
approach to the detainees held at Guantánamo Bay. O’Connor split the
difference each time. Yes to restrictions on abortion but no to outright
bans; yes to affirmative action but no to quotas; yes to the right of
detainees to go to court but no to the full constitutional rights of
American citizens. In describing her judicial philosophy, O’Connor liked
to point to the sculpted turtles that formed the base of the lampposts
outside the Supreme Court. “We’re like those turtles,” she would say.
“We’re slow and steady. We don’t move too fast in any direction.”
Anthony
Kennedy was no turtle. He tended to swing wildly in one direction or
the other. When he was with the liberals, he could be very liberal. His
opinion in
Lawrence v. Texas, the 2003 opinion striking down laws
against consensual sodomy, contains a lyrical celebration of the rights
of gay people. In
Boumediene v. Bush, the 2008 case about the rights of
accused terrorists, he excoriated the Bush Administration and Congress.
“To hold that the political branches may switch the constitution on or
off at will would lead to a regime in which they, not this court, ‘say
what the law is,’ ” he wrote, quoting
Chief Justice John Marshall’s
famous words from 1803, in
Marbury v. Madison. No one relished saying
“what the law is” more than Kennedy.
But in his conservative mode
Kennedy could be harshly dismissive of women’s autonomy, as in
Gonzales
v. Carhart, the 2007 late-term-abortion law case. (“Some women come to
regret their choice to abort the infant life they once created and
sustained,” he noted. “Severe depression and loss of esteem can
follow.”) Kennedy is believed to have written the most notorious
sentence in the majority opinion in
Bush v. Gore, acknowledging that the
Court acted for the sole benefit of George W. Bush: “Our consideration
is limited to the present circumstances, for the problem of equal
protection in election processes generally presents many complexities.”
Kennedy was not a moderate but an extremist—of varied enthusiasms.
All
the Justices knew that Kennedy’s views were most extreme when it came
to the First Amendment. In the Roberts Court, there was often a broad
consensus about protecting freedom of speech. Some areas of the law that
had once been controversial, such as the suppression of dangerous or
unpopular views, were resolved with little disagreement. Still, even in a
legal system that protects free speech, the government had long been
able to regulate speech in all kinds of ways. Copyright infringement was
subject to civil and criminal remedies; extortion and other crimes
involving the use of words were routinely punished. Campaign
contributions, if they were considered “speech” at all, had been
regulated for more than a century.
But Kennedy was extremely
receptive to arguments that the government had unduly restricted freedom
of speech—especially in the area of campaign finance. Throughout his
long tenure on the Court, he had dissented, often in strident terms,
anytime his colleagues upheld regulations in that area. In addition,
Kennedy loved writing high-profile opinions.
Roberts, during his
confirmation hearing, made much of his judicial modesty and his respect
for precedent. If the Chief had written
Citizens United, he would have
been criticized for hypocrisy. But by giving the opinion to Kennedy he
obtained a far-reaching result without leaving his own fingerprints.
Kennedy had already written a draft majority opinion in the case. He
would write even more expansively than Roberts had done in his
never-published opinion in the case.
Kennedy
did not disappoint the Chief Justice. “Speech is an essential mechanism
of democracy, for it is the means to hold officials accountable to the
people,” he wrote for the Court in his familiar rolling cadence. “The
right of citizens to inquire, to hear, to speak, and to use information
to reach consensus is a precondition to enlightened self-government and a
necessary means to protect it.” These rhetorical flights were a long
way from the gritty business of raising and spending campaign money.
Kennedy
often saw First Amendment issues in terms of abstractions.
Citizens
United, at its core, concerned a law that set aside a brief period of
time (shortly before elections) when corporations could not fund
political commercials. To Kennedy, this was nothing more than
censorship: “By taking the right to speak from some and giving it to
others, the Government deprives the disadvantaged person or class of the
right to use speech to strive to establish worth, standing, and respect
for the speaker’s voice. The Government may not by these means deprive
the public of the right and privilege to determine for itself what
speech and speakers are worthy of consideration. The First Amendment
protects speech and speaker, and the ideas that flow from each.”
Moreover,
Kennedy wrote, “The Court has recognized that First Amendment
protection extends to corporations.” This had been true since 1886, and
speech, especially political speech, could never be impeded. “The
censorship we now confront is vast in its reach,” Kennedy wrote. “The
Government has muffled the voices that best represent the most
significant segments of the economy. And the electorate has been
deprived of information, knowledge and opinion vital to its function. By
suppressing the speech of manifold corporations, both for-profit and
nonprofit, the Government prevents their voices and viewpoints from
reaching the public and advising voters on which persons or entities are
hostile to their interests.
“If the First Amendment has any
force,” Kennedy concluded, “it prohibits Congress from fining or jailing
citizens, or associations of citizens, for simply engaging in political
speech.”
So
McCain-Feingold, and two Supreme Court precedents,
had to be mostly overruled. The Constitution required that all
corporations, for-profit and nonprofit alike, be allowed to spend as
much as they wanted, anytime they wanted, in support of the candidates
of their choosing. For the moment, at least, the ban on direct corporate
contributions to candidates remained intact.
John
Paul Stevens was just short of ninety at the time of Citizens United,
and he belonged to a vanishing political tradition—that of the moderate
Midwestern Republican. His first sponsor for a federal judgeship was
Senator Charles Percy; Gerald Ford appointed Stevens to the Court based
on the recommendation of his Attorney General, Edward Levi, who had been
the dean of the University of Chicago Law School. For decades, moderate
Republicans had played crucial roles on the Supreme Court: John
Marshall Harlan II, in the fifties; Potter Stewart, in the sixties;
Lewis Powell, in the seventies and eighties; and O’Connor, in the
nineties and the new millennium. In his early years on the Court,
Stevens settled into the ideological center, between William Brennan and
Thurgood Marshall, on the left, and Rehnquist, then an Associate
Justice, and Chief Justice Warren Burger, on the right. Stevens’s voting
record was roughly in line with the Republican appointees such as
Stewart, Powell, Harry Blackmun, and O’Connor.
But as Justices
were replaced by more contemporary Republicans, Stevens often found
himself described as a liberal. He did move to the left, especially on
the death penalty. But his evolution into the leader of the liberal wing
was mostly the result of the rest of the Court moving so far to the
right.
Stevens became the senior Associate Justice after Blackmun
stepped down, in 1994, and during the next decade he was confident that
he could pull together majorities for his side. Toward the end of the
Rehnquist Court, Stevens had a string of good years, as O’Connor became a
frequent ally, especially on issues relating to
Guantánamo. Kennedy,
too, joined Stevens’s side on gay rights and some death-penalty cases.
More often than his liberal colleagues, Stevens voted to review
controversial cases. Ginsburg and Breyer, fearing disaster if the Court
took these cases, tended to prefer not to address them.
But John
Roberts and Samuel Alito sapped John Paul Stevens’s optimism. In less
than five years, the pair of Bush appointees, joined by Scalia, Thomas,
and, usually, Kennedy, had overturned many of the Court’s precedents.
Unlike his new conservative colleagues, Stevens, like Souter, thought
that the law should develop slowly, over time, with each case building
logically on its predecessors. The course of
Citizens United represented
everything that offended Stevens most about the Roberts Court.
In
some ways, Stevens’s greatest objections were procedural. Like Ginsburg
(and almost no one else), Stevens had a deep fascination with the
mysteries of federal procedure. He was happy to wade into the subject
for hours. (Stevens was the only Justice who generally wrote his own
first drafts of opinions.) So it was especially galling that the Court
converted
Citizens United from a narrow dispute about the application of
a single provision in
McCain-Feingold to an assault on a century of
federal laws and precedents. To Stevens, it was the purest kind of
judicial activism.
Or, as he put it in his dissenting opinion,
“Five Justices were unhappy with the limited nature of the case before
us, so they changed the case to give themselves an opportunity to change
the law.” The case should have been resolved by simply ruling on
whether
McCain-Feingold applied to “Hillary: The Movie,” or at least to
nonprofit corporations like
Citizens United.
Stevens was just
warming up. His dissent was ninety pages, the longest of his career. He
questioned every premise of Kennedy’s opinion, starting with its
contempt for
stare decisis, the rule of precedent. He went on to refute
Kennedy’s repeated invocations of “censorship” and the “banning” of free
speech. The case was merely about
corporate-funded commercials shortly
before elections. Corporations could run as many commercials as they
liked during other periods, and employees of the corporations (by
forming a political-action committee) could run ads at any time.
Stevens
was especially offended by Kennedy’s blithe assertion that corporations
and human beings had identical rights under the First Amendment. “The
Framers thus took it as a given that corporations could be
comprehensively regulated in the service of the public welfare,” Stevens
wrote. “Unlike our colleagues, they had little trouble distinguishing
corporations from human beings, and when they constitutionalized the
right to free speech in the First Amendment, it was the free speech of
individual Americans that they had in mind.” Congress and the courts had
drawn distinctions between corporations and people for decades, Stevens
wrote, noting that, “at the federal level, the express distinction
between corporate and individual political spending on elections
stretches back to 1907, when Congress passed the
Tillman Act.”
As
for Kennedy’s fear that the government might regulate speech based on
“the speaker’s identity,” Stevens wrote, “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.” And Stevens, a former Navy man, could not resist a
generational allusion: he said that Kennedy’s opinion “would have
accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during
World War II the same protection as speech by Allied commanders.”
(Stevens’s law clerks didn’t like the dated reference to Tokyo Rose, who
made propaganda broadcasts for the Japanese, but he insisted on keeping
it.)
Stevens’s conclusion was despairing. “At bottom, the Court’s
opinion is thus a rejection of the common sense of the American people,
who have recognized a need to prevent corporations from undermining
self-government since the founding, and who have fought against the
distinctive corrupting potential of corporate electioneering since the
days of Theodore Roosevelt,” he wrote. “It is a strange time to
repudiate that common sense. While American democracy is imperfect, few
outside the majority of this Court would have thought its flaws included
a dearth of corporate money in politics.” It was an impressive dissent,
but that was all it was. Anthony Kennedy, on the other hand, was
reshaping American politics.
Six days after the
Court’s decision, President Obama gave his State of the Union address.
Picking up on the issue that Ginsburg had raised in the oral
argument—the possibility of foreigners buying influence in American
elections—the President declared, “With all due deference to separation
of powers, last week the Supreme Court reversed a century of law that I
believe will open the floodgates for special interests—including foreign
corporations—to spend without limit in our elections.” The Democrats in
the chamber rose in a standing ovation as Obama continued, “I don’t
think American elections should be bankrolled by America’s most powerful
interests or, worse, by foreign entities.” Cameras caught Alito
mouthing the words “not true” when Obama mentioned foreign corporations.
Alito had a point. Kennedy’s opinion expressly reserved the question of
whether the ruling applied to foreign corporations. But, as Olson had
argued before the Justices, the logic of the Court’s prior decisions
suggested that foreign corporations had equal rights to spend in
American elections.
In any event, the implications of
Citizens
United were quickly apparent. In March, 2010, the D.C. Circuit ruled
that individuals could make unlimited contributions to so-called
Super PACs,
which supported individual candidates. This opened the door for
Presidential campaigns in 2012 that were essentially underwritten by
single individuals.
Sheldon Adelson, the gambling entrepreneur, gave
about fifteen million dollars to support
Newt Gingrich, and
Foster
Friess, a Wyoming financier, donated almost two million dollars to
Rick
Santorum’s Super
PAC.
Karl Rove organized a Super
PAC that has raised about thirty million dollars in the past several months for use in support of Republicans.
These
developments have drawn some criticism, but the Court appears
determined to extend the de-regulatory revolution that it began in
Wisconsin Right to Life and
Citizens United. Last year, the Court struck
down Arizona’s system of public financing of elections, which the state
had passed after a series of political scandals involving fund-raising.
The Arizona system gave additional funds to candidates for certain
state offices who were being heavily outspent by their privately funded
opponents. By the customary vote of five-to-four, with an opinion by
Roberts, the Court declared the system unconstitutional. As Kennedy had
in
Citizens United, Roberts said that governments could never take steps
to equalize opportunities for candidates in electoral contests. “
‘Leveling the playing field’ can sound like a good thing,” he wrote.
“But in a democracy, campaigning for office is not a game. It is a
critically important form of speech. The First Amendment embodies our
choice as a Nation that, when it comes to such speech, the guiding
principle is freedom—the ‘unfettered interchange of ideas.’ ” The
Roberts Court, it appears, will guarantee moneyed interests the freedom
to raise and spend any amount, from any source, at any time, in order to
win elections.
♦
