Five Editorials...Citizens United v. the Federal Election Commission

The Trial of John Roberts

By JEFFREY ROSEN
Published: September 12, 2009
Washington

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Times Topics: John G. Roberts Jr.

FOUR years ago, when John Roberts became chief justice of the United States, he said that he hoped to emulate the modesty and unanimity of his greatest predecessor, John Marshall. But if Chief Justice Roberts presides over a broad, ideologically divided ruling in a campaign finance case the court heard last week, he risks being remembered instead as a conservative Earl Warren.

For decades conservatives have attacked Warren, who was chief justice from 1953 to 1969, as the face of liberal judicial activism. They have criticized him for presiding over a court that imposed a contested vision of social justice on an unwilling nation — overturning decades of precedents and scores of federal and state laws in the process.

Moreover, conservatives view Warren as a Machiavellian former politician (he had been governor of California) who used incremental strategies to pursue radical ends — handing down a series of cautious decisions that favored the police, for example, and then tying their hands by requiring officers to read suspects their rights in the 5-to-4 Miranda decision of 1966.

Likewise, if the Roberts court issues a sweeping 5-to-4 decision in the current case, Citizens United v. the Federal Election Commission, striking down longstanding bans on corporate campaign expenditures, it would define John Roberts as indelibly as Miranda defined Earl Warren. And there is no reason for the court to do so: it would be easy for the justices to rule narrowly in the Citizens United case, holding that the corporate-financed political material in question — a documentary called “Hillary: the Movie” — isn’t the kind of campaign ad that federal law was intended to regulate.

But many conservatives, and even some liberal devotees of the First Amendment, are urging the Roberts court to uproot federal and state regulations on corporate campaign spending that date back to 1907, as well as decades of Supreme Court precedents. If Chief Justice Roberts takes that road, his paeans to judicial modesty and unanimity would appear hollow.

In his confirmation hearings in 2005, Judge Roberts talked about the “jolt to the legal system” that occurs whenever the Supreme Court overturns its own precedents. And soon after taking office, he expressed concern that his colleagues were acting more like law professors than members of a collegial court in their willingness to divide along predictable party lines. He said he would try to persuade his colleagues to converge around narrow, unanimous opinions that avoided the most contentious constitutional issues. The result, he said, would help shore up the court’s legitimacy in a polarized age.

During his four terms as chief justice, Mr. Roberts has had mixed success in achieving his vision of narrow, unanimous opinions, although he surely deserves credit for trying. Under his leadership, the percentage of 5-to-4 decisions has fluctuated from a low of 11 percent in his first term to a high of 33 percent in the term that ended in 2007. Chief Justice Roberts has been most successful in achieving unanimity in cases involving business interests, which now represent some 40 percent of the court’s docket. According to the United States Chamber of Commerce, 79 percent of these cases are decided by margins of 7-to-2 or better.

At his best, Chief Justice Roberts has distanced himself from the most ardent conservative culture warriors on the court, Antonin Scalia and Clarence Thomas. In his most impressive act of judicial statesmanship, he persuaded his colleagues to converge around a narrowly written 8-to-1 decision in June that sidestepped the constitutional difficulties raised by a bipartisan amendment to the federal Voting Rights Act. (Only Justice Thomas dissented.) And Justice Roberts pointedly refused to join Justices Scalia, Thomas and Anthony Kennedy when they called in 2007 for gutting campaign finance regulations — endorsing a more modest position that Antonin Scalia attacked as “faux judicial restraint.”

If, however, in the Citizens United case, Justices Roberts and Samuel Alito now join Justices Scalia, Kennedy and Thomas in a 5-to-4 decision that broadly overturns longstanding bans on corporate campaign expenditures, the 2007 Scalia critique will be vindicated. And liberals will conclude that John Roberts is guilty of precisely the kind of strategic temporizing that conservatives have long ascribed to Earl Warren.

There is, of course, a case to be made for Warren Court activism, and it was made in the Citizens United argument last week by Floyd Abrams, a principled liberal who opposes campaign finance regulations on free speech grounds. (Paradoxically, he was arguing on behalf of Senator Mitch McConnell, the very conservative leader of the Senate Republicans.) Mr. Abrams invoked the landmark 1964 decision in New York Times v. Sullivan — which held that public figures could not sue the press for defamation unless there was “actual malice” involved — as one in which the court was right to rule broadly and overturn 150 years of settled jurisprudence.

But the Sullivan decision was 9-to-0: not a single justice believed that The New York Times could be sued for running an ad that the police commissioner in Montgomery, Ala., viewed as critical of his actions against civil rights protesters. Moreover, it was a decision that was acceptable to the country as a whole at a time when all three branches of government agreed about the importance of federal civil rights laws.

In fact, the most successful decisions of the Warren era fit the same model. Despite conservative caricatures of him as an activist who didn’t care about public opinion, Warren was a canny politician who viewed his role as working harmoniously with the governing majority in the White House and Congress to solve the nation’s problems. The unanimous Brown v. Board of Education was popular with 54 percent of the country when it came down in 1954. Baker v. Carr, the landmark 6-to-2 decision (Justice Charles Evans Whittaker did not participate) from 1962 that Warren considered the most important of his tenure, was hailed by voters from both parties for recognizing the principle of “one man, one vote.” Griswold v. Connecticut, the 7-to-2 decision from 1965 striking down an archaic Connecticut law forbidding the use of contraceptives by married couples, was supported by broad national majorities.

HOW, then, by the late 1960s did Warren become a symbol of judicial arrogance? The answer, according to the historian Lucas A. Powe Jr., can be found in its controversial decisions on criminal procedure. These cases tended to be closely divided along ideological lines and intensely opposed by national majorities. Mapp v. Ohio of 1961, for example, was a 6-to-3 decision that imposed the exclusionary rule on the states, changing the law in half of them and freeing guilty defendants across the country. Escobedo v. Illinois of 1964, the 5-to-4 decision that held that suspects have a right to a lawyer during police interrogations, created a political firestorm.

The success of Earl Warren’s bipartisan decisions, and the intense controversy produced by his ideologically divided ones, offers a cautionary tale for Chief Justice Roberts. If he presides over a court that establishes itself as the adversary rather than the partner of the president and Congress — imposing hotly contested visions of free speech and racial equality with a narrow court majority — he will become as polarizing a figure at the beginning of his tenure as Warren became at the end of his own.

John Roberts clearly understands the stakes. During an interview at end of his first term, he told me that the most successful chief justices in American history have been able to persuade their colleagues to speak with one voice. By contrast, he said, 5-to-4 decisions involving the most controversial questions in American politics make it harder for the public to respect the court as an institution that transcends politics.

Now he can support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace, or he can hand down a broad, activist decision that turns our political system upside down. John Marshall or Earl Warren: the choice is his.

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic.
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September 10, 2009

Justices Are Pressed for a Broad Ruling in Campaign Case

By ADAM LIPTAK
WASHINGTON — There seemed little question after the argument in an important campaign finance case at the Supreme Court on Wednesday that the makers of a slashing political documentary about Hillary Rodham Clinton were poised to win. The open issue was just how broad that victory would be.

The argument was extraordinary in its timing, length and participants. It took place during the court’s summer break, almost a month before the start of the new term in October; lasted more than 90 minutes instead of the usual hour; and featured the Supreme Court debuts of Justice Sonia Sotomayor and the solicitor general, Elena Kagan.

It was, moreover, a rare re-argument. When the case was first heard in March, it centered on whether the restrictions on corporate spending in the 2002 McCain-Feingold campaign finance law applied to the documentary “Hillary: The Movie,” which was produced by a nonprofit advocacy corporation called Citizens United. In the request for re-argument, the court raised the much broader question of whether it should sweep away restrictions on political speech by corporations.

On Wednesday, Ms. Kagan all but said that a loss for the government would be acceptable, so long as it was on narrow grounds.

She suggested to the justices that Citizens United might not be the sort of corporation to which some campaign finance restrictions ought to apply. What the Supreme Court should not do, she said, is overrule two earlier decisions and thereby allow all kinds of corporations to spend money to support or oppose political candidates, principally through television advertisements.

Chief Justice John G. Roberts Jr., on hearing the government’s position, accused it of engaging in strategic behavior.

“So you want to give up this case,” Chief Justice Roberts said to Ms. Kagan, “change your position, and basically say you lose solely because of the questioning we have directed on re-argument?”

Ms. Kagan did not go that far. But she said, “If you are asking me, Mr. Chief Justice, as to whether the government has a position as to the way it loses, if it has to lose, the answer is yes.”

Chief Justice Roberts and several of the court’s more conservative justices seemed frustrated with the complex state of modern campaign finance law and appeared ready to take bold action. Justice Sotomayor, like some of the court’s more liberal members, seemed inclined to take a narrower approach.

“Wouldn’t we be doing some more harm than good,” she asked Floyd Abrams, “by a broad ruling in a case that doesn’t involve more business corporations, and actually doesn’t involve the traditional nonprofit corporation?”

“Your honor,” Mr. Abrams responded, “I don’t think you’d be doing more harm than good in vindicating the First Amendment rights here, which transcend that of Citizen United.” Mr. Abrams represented Senator Mitch McConnell of Kentucky, the Republican leader and a longtime foe of campaign finance regulation.

The order calling for re-argument in the case, Citizens United v. Federal Election Commission, No. 08-205, asked the parties to offer their views on whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates, and part of McConnell v. Federal Election Commission, the 2003 decision that upheld the central provisions of the McCain-Feingold campaign finance law.

The McCain-Feingold law bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election. The law requires the government, Justice Anthony M. Kennedy said, to make an array of distinctions — among speakers, what they say and when they say it — that raise serious First Amendment concerns.

The court could rule in favor of Citizens United without making fundamental changes to the political landscape. It could say that the McCain-Feingold law was not meant to address 90-minute documentaries like the one at issue. It could say that the way Citizens United wanted to distribute the documentary, on a cable video-on-demand service, was not covered by the law. Or it could, as Ms. Kagan suggested, carve out some kinds of corporations.

Justice Sotomayor asked Theodore B. Olson, a lawyer for Citizens United, whether his side had abandoned earlier arguments based on the McCain-Feingold law rather than the First Amendment rights of all corporations.

Mr. Olson indicated that he was prepared to accept any sort of victory. But he added that the court would have to confront the larger question in the case soon enough and that whatever interim lines the court drew would chill free speech in the meantime.

Mr. Abrams reminded the court that it could have decided New York Times v. Sullivan, the 1964 decision that revolutionized the law of libel, on quite narrow grounds. When First Amendment rights are in danger, Mr. Abrams said, a broad ruling can be the correct one.

“Hillary: The Movie,” a caustic critique of Mrs. Clinton, was shown in theaters in six cities, and it remains available on DVD and the Internet. A three-judge panel of the Federal District Court said last year that it could not be transmitted on cable because it had only one purpose: “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.”

Ms. Kagan disavowed a statement that a government lawyer made when the case was first argued in March. The lawyer said the government could ban the distribution of books paid for by corporations before elections.

“The government’s answer has changed,” Ms. Kagan said, adding that the Federal Election Commission had never tried to regulate distribution of books.

Chief Justice Roberts bristled at that statement. “We don’t put our First Amendment rights in the hands of F.E.C. bureaucrats,” he said.

He then asked about pamphlets. “A pamphlet would be different,” Ms. Kagan said. “A pamphlet is pretty classic electioneering.”

Much of the argument was taken up by discussions of whether the speech of corporations might be treated different from that of individuals. Mr. Olson and Justice Antonin Scalia noted that most corporations were small, had limited assets and often were owned by a single shareholder. Justice Ruth Bader Ginsburg asked about “megacorporations” with foreign investors.

Changes at the court, particularly the replacement of Justice Sandra Day O’Connor by Justice Samuel A. Alito Jr. in 2006, have substantially altered its attitude to campaign finance laws. A five-justice majority of the Roberts court has been hostile to such laws, but Chief Justice Roberts and Justice Alito have so far moved in cautious increments.

Judging by the request for re-argument and the tenor of the questioning on Wednesday, that may be about to change.
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September 8, 2009
EDITORIAL

A Threat to Fair Elections

The Supreme Court may be about to radically change politics by striking down the longstanding rule that says corporations cannot spend directly on federal elections. If the floodgates open, money from big business could overwhelm the electoral process, as well as the making of laws on issues like tax policy and bank regulation.

The court, which is scheduled to hear arguments on this issue on Wednesday, is rushing to decide a monumental question at breakneck speed and seems willing to throw established precedents and judicial modesty out the window.

Corporations and unions have been prohibited from spending their money on federal campaigns since 1947, and corporate contributions have been barred since 1907. States have barred corporate expenditures since the late 1800s. These laws are very much needed today. In the 2008 election cycle, Fortune 100 companies alone had combined revenues of $13.1 trillion and profits of $605 billion. That dwarfs the $1.5 billion that Federal Election Commission-registered political parties spent during the same election period, or the $1.2 billion spent by federal political action committees.

The Supreme Court has repeatedly upheld the limitations on corporate campaign expenditures. In 1990, in Austin v. Michigan Chamber of Commerce, and again in 2003, in McConnell v. Federal Election Commission, it made clear that Congress was acting within its authority and that the restrictions are consistent with the First Amendment.

In late June, the court directed the parties to address whether Austin and McConnell should be overruled. It gave the parties in Citizens United v. Federal Election Commission a month to write legal briefs on a question of extraordinary complexity and importance, and it scheduled arguments during the court’s vacation.

All of this is disturbing on many levels. Normally, the court tries not to decide cases on constitutional grounds if they can be resolved more simply. Here the court is reaching out to decide a constitutional issue that could change the direction of American democracy.

The court usually shows great respect for its own precedents, a point Chief Justice John Roberts made at his confirmation hearings. Now the court appears ready, without any particular need, to overturn important precedents and decades of federal and state law.

The scheduling is enormously troubling. There is no rush to address the constitutionality of the corporate expenditures limit. But the court is racing to do that in a poorly chosen case with no factual record on the critical question, making careful deliberation impossible.

Most disturbing, though, is the substance of what the court seems poised to do. If corporations are allowed to spend from their own treasuries on elections — rather than through political action committees, which take contributions from company employees — it would usher in an unprecedented age of special-interest politics.

Corporations would have an enormous say in who wins federal elections. They would be able to use this influence to obtain subsidies, stimulus money and tax loopholes and to undo protections for investors, workers and consumers. It would take an extraordinarily brave member of Congress to stand up to agents of big business who then could say, quite credibly, that they would spend whatever it takes in the next election to defeat him or her.

The conservative majority on the court likes to present itself as deferential to the elected branches of government and as minimalists about the role of judges. Chief Justice Roberts promised the Senate that if confirmed he would remember that it’s his “job to call balls and strikes and not to pitch or bat.”

If the court races to overturn federal and state laws, and its well-established precedents, to free up corporations to drown elections in money, it will be swinging for the fences. The American public will be the losers.
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September 11, 2009
EDITORIAL

The Court and Campaign Finance

In the Supreme Court this week, Elena Kagan, the new solicitor general, eloquently defended the longstanding ban on corporate spending in political campaigns. But the conservative justices who spoke showed a disdain for both Congress’s laws and for the court’s own prior rulings. If the ban is struck down, as we fear, elections could be swamped by special-interest money.

Conservative jurists talk about judicial modesty and deferring to the elected branches. But in the questioning, Justice Antonin Scalia made clear that he considers Congress to be a self-interested actor when it writes campaign finance laws. Chief Justice John Roberts and Justice Samuel Alito seemed to put little weight on the fact that the court has repeatedly upheld a ban on corporate campaign expenditures.

What the conservatives seemed most concerned about was protecting the interests of corporations. The chief justice and Justice Scalia seemed especially perturbed that what they see as the inviolable right of these legal constructs to speak might be infringed upon.

The conservatives also seemed incredulous that vast amounts of corporate money flooding into campaigns could be seen as corrupting the system. We agree with Senator John McCain, who told reporters after the argument that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.

The more liberal justices — including Justice Sonia Sotomayor, who was participating in her first argument — were far more sympathetic to the ban on corporate expenditures, but they have only four votes.

There is still some hope that Chief Justice Roberts may decide his affection for corporations is less important than the reputation of the Roberts court. If he does, there is a chance for a limited, and relatively undamaging, ruling that hews closely to the facts of this case.

The underlying dispute is a narrow First Amendment challenge brought by Citizens United, a nonprofit group that wanted to show an anti-Hillary Clinton movie on a video-on-demand service during the primary season. The court could uphold its right to show the movie without opening the door to a new era of political corruption.
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It Could Be the End of Our Democracy as We Know It

http://www.truthdig.com/report/item/20090906_it_could_be_the_end_of_our_democracy_as_we_know_it/

Posted on Sep 6, 2009

By E.J. Dionne

President Barack Obama’s health care speech on Wednesday will be only the second most consequential political moment of the week.

Judged by the standard of an event’s potential long-term impact on our public life, the most important will be the argument before the Supreme Court (on the same day, as it happens) about a case that, if decided wrongly, could surrender control of our democracy to corporate interests.

This sounds melodramatic. It’s not. The court is considering eviscerating laws that have been on the books since 1907 in one case and 1947 in the other, banning direct contributions and spending by corporations in federal election campaigns. Doing so would obliterate precedents that go back two and three decades.

The full impact of what the court could do in Citizens United v. Federal Election Commission has only begun to receive the attention it deserves. Even the word radical does not capture the extent to which the justices could turn our political system upside down. Will the high court use a case originally brought on a narrow issue to bring our politics back to the corruption of the Gilded Age?

Citizens United, a conservative group, brought suit arguing that it should be exempt from the restrictions of the 2002 McCain-Feingold campaign finance law for a movie it made that was sharply critical of Hillary Clinton. The organization said it should not have to disclose who financed the film.

Instead of deciding the case before it, the court engaged in a remarkable act of overreach. On June 29, it postponed a decision and called for new briefs and a highly unusual new hearing, which is Wednesday’s big event. The court chose to consider an issue only tangentially raised by the case. It threatens to overrule a 1990 decision that upheld the long-standing ban on corporate money in campaigns.

I don’t have the space to cite all the precedents the court would have to set aside, going back to the Buckley campaign finance ruling of 1976, if it threw out the prohibition on corporate money. Suffice it to say that there is one member of the court who has spoken eloquently about the dangers of ignoring precedents.

“I do think that it is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question, it just poses the question.”

This careful jurist continued: “And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments.”

He learnedly cited Alexander Hamilton, who wrote in Federalist 78: “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.”

Chief Justice John Roberts, the likely swing vote in this case, was exactly right when he said these things during his 2005 confirmation hearings. If he uses his own standards, it is impossible to see how he can justify the use of “arbitrary discretion” to discard a well-established system whose construction began with the Tillman Act of 1907.

Were the courts that set the earlier precedents “legitimate”? This ban was upheld over many years by justices of a variety of philosophical leanings. We are not talking about overturning a single decision by a bunch of activists in robes seizing a temporary court majority.

Are the precedents “workable”? The answer is clearly yes, which is why there is absolutely no popular demand to let corporate cash loose into our politics. Our system would be less “workable” if the court abruptly changed the law.

Has the precedent been “eroded”? Absolutely not. In case after case, no matter where particular court majorities stood on particular campaign finance provisions, the ban on corporate contributions was taken for granted. As the court stated just six years ago, Congress’ power to prohibit direct corporate and union contributions “has been firmly embedded in our law.” That’s what you call “settled expectations.”

This case is the clearest test Justice Roberts has faced so far as to whether he meant what he said to Congress in 2005. I truly hope he passes it. If he doesn’t, he will unleash havoc in our political system and greatly undermine the legitimacy of the court he leads.

E.J. Dionne’s e-mail address is ejdionne(at)washpost.com.

© 2009, Washington Post Writers Group