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In early January, I spoke to the Kentucky Legislature on the occasion of its annual ethics workshop, at the invitation of its admirable independent Legislative Ethics Commission. Kentucky, like many states, has a ban on corporate expenditures on campaigns written into its state constitution.
Lawmakers of both parties said they know what can happen when corporations either throw money around Lexington or threaten to do so if their demands are not met. They wanted reassurance that their constitutional provision would remain intact after the Citizens United decision came down in the Supreme Court.
I could give them no such assurance. I hoped Citizens United would be decided narrowly but feared that the court would take a meat ax to a century of settled law and policy. My worst fears were realized.
Step back for a moment and look at the trajectory of this case. It was brought by a conservative group to challenge narrowly a provision of the 2002 Bipartisan Campaign Reform Act, to allow unlimited corporate funding for advertising for a “documentary” film called “Hillary: The Movie” that was unabashedly designed to derail Hillary Rodham Clinton’s campaign for president, trying to exploit a loophole in the law. The plaintiffs, Citizens United, wanted an exception for their documentary. They did not raise the larger question of overturning the ban on corporate spending in federal campaigns.
The case was heard on that basis–but then, Chief Justice John Roberts, joined by, among others, his crony Samuel Alito, decided unilaterally to raise the broader issue and demanded a rehearing. Last week, they issued their ruling.
Let’s start by giving some direct quotes from Roberts at his confirmation hearings in front of the Senate Judiciary Committee in September 2005. From his opening statement: “Judges and justices are servants of the law, not the other way around. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedents, shaped by other judges equally striving to live up to the judicial oath.” He added, “I will remember that it is my job to call balls and strikes and not to pitch or bat.”
Roberts pointed out, “I do think that it is a jolt to the legal system when you overrule a precedent. . . . It is not enough that you may think the prior decision was wrongly decided.” And, “The role of the judge is limited; the judge is to decide the cases before them; they’re not to legislate; they’re not to execute the laws.”
Now add the comments Roberts made a year later at the Georgetown law school commencement: “The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground.” He added: “If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”
This was a case never raised by the plaintiffs and never formally brought before the Roberts Court. We do not have an instance where an actual for-profit corporation has complained that it has been barred from its ability to get its message across in the political process. The cases overturned and the laws struck down were considered carefully by judges and Congresses past, including in the McConnell decision barely six years ago. Only one thing has changed since–the political and ideological complexion of the Supreme Court brought on in particular by the retirement of Sandra Day O’Connor.
Chief Justice Roberts broke every vow he made in his confirmation hearings, and his rather pathetic defense of his reversal only underscores his shameless behavior.
As for the author of the opinion, Justice Anthony Kennedy, the ink was barely dry on his ruling in Caperton v. A.T. Massey Coal Co. decrying outsized monied influence on judicial elections before he dismissed any effect of huge independent expenditures in Congressional or presidential or state legislative elections–and not just from any corporations; Kennedy’s opinion was great news for Vladimir Putin and the Chinese leadership, among others, who can now easily circumvent any rules and pour huge sums into influencing American elections and the decisions of lawmakers via an American subsidiary of a Russian or Chinese company.
This decision equates corporations, which have one goal, to make money, with individual citizens, who have many goals and motives in their lives, including making a better society, protecting their children and grandchildren and future generations, and so on. It is bizarre reasoning. And it is not even the money that might be spent–it is the threat of spending that will quickly alter many equations on Capitol Hill. For nervous lawmakers, changing a word or two in a bill regulating banks or insurance companies to head off a million-dollar ad campaign in their districts or states will be a tempting course. The impact often will be felt at the margins, behind closed doors, but with huge effects on policy.
There are partial remedies in the short run, but getting them enacted in the partisan and ideological legislative process we have now will not be easy. There are longer-term fixes, including, I hope, the set of ideas put forward by Tony Corrado, Michael Malbin, Tom Mann and me in our recent working group report, “Reform in an Age of Networked Campaigns,” available at campaignfinanceinstitute.org/pr/prRelease.aspx?ReleaseID=239.
But the Citizens United decision will reverberate for a long time, regardless of changes now or soon. The court will likely soon take up a case to allow corporations (now the same as people) to make contributions directly to candidates. And the court is likely to find an opportunity, perhaps by plucking another case out of oblivion, to strike down the soft-money ban, creating a total Wild West climate in politics. It is sad–made sadder by knowing that for perhaps decades to come, the United States will have a chief justice who would, and did, say anything to burnish his reputation and avoid a rocky confirmation hearing, and showed that his words mean nothing.
Norman J. Ornstein is a resident scholar at AEI.
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