IF THE FIRST decade of the 21st century began with the Supreme Court’s Bush vs. Gore ruling that selected a U.S. president, it ended with another decision that was also conspicuous as a departure from long democratic precedent. And like Bush vs. Gore, it was a case of judicial activism tilting the electoral system toward conservative interests and outcomes.
The Court’s 5 to 4 decision in Citizens United vs. Federal Election Commission on Jan. 21, 2010, allowed the use of corporate and union money in unlimited sums to influence election campaigns. Citizens United was, all at once, a truly remarkable piece of judicial activism, a precedent-shattering evisceration of a century-long tradition of limiting corporate power in American politics, a break with the republican tradition’s well-founded fear of political corruption, and a direct interference with the electoral rules in a way that favored those who had put the conservative justices in a position to make the ruling in the first place.
The case arose when 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, at the time a presidential candidate. The organization argued that, as a First Amendment matter, it should not be required by law to disclose who financed the film.
The conservative majority’s determination to go far beyond the specifics of the case it was considering became clear in June 2009 when the Court, in a remarkable act of overreach, postponed a decision and called for new briefs and a highly unusual new hearing. It chose to consider an issue only tangentially raised in the original case by calling into question a 1990 decision that upheld the long-standing ban on the use of corporate money in campaigns. As Justice John Paul Stevens noted later in his scalding dissent, “Essentially, 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 broad idea of keeping corporate money separate from politics went back to the 1907 Tillman Act, and all the precedents were on the side of insisting that corporations did not have the same rights as actual, live human beings, even if, as a legal fiction, corporations were often treated as “persons.”
The entire episode came as something of a shock to those who had insisted that Chief Justice John Roberts was a relatively moderate conservative and that he would pay close attention to precedent. After all, Roberts had promised exactly this when he appeared before the Senate Judiciary Committee at his confirmation hearings.
“I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts had said back in 2005. “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.”
“And you do look at these other factors,” Roberts went on, “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 paraphrased Alexander Hamilton as saying in Federalist #78, “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.” This was, one might say, a thoughtful, conservative view.
By Roberts’ own standards, Citizens United should have gone the other way. Tossing out an established system whose construction went back to 1907 was indeed an act of “arbitrary discretion.” The ban on corporate money in politics had been upheld over many years by justices of various philosophical leanings. It was not the product of a single decision by a temporarily activist Court. And the precedents were clearly workable, since no one was asking the Court to change them, and parties and candidates had long lived by them. They had not been eroded. The corporate ban had been upheld in case after case, no matter where particular Court majorities stood on particular campaign finance provisions. The ban on corporate contributions was simply taken for granted. As the Court had stated just six years earlier, Congress’ power to prohibit direct corporate and union political spending “has been firmly embedded in our law.”
Rarely has a case so clearly pitted republican notions of self-government and the community’s right to keep the political system free of corruption against a radical kind of individualism conveying to corporations the same rights as those guaranteed citizens. The Founders played a key role in the dueling opinions of Justice Scalia, who supported the ruling, and Justice Stevens, who denounced the result as threatening “to undermine the integrity of elected institutions across the Nation.” The fact that each read the Founders differently pointed to the limits of a jurisprudence based on “original intention,” given the complexity of the Founders’ views and the habit of originalists to be absolutely confident in their ability to read the Founders’ minds.
The Framers, Stevens argued, “took it as a given that corporations could be comprehensively regulated in the service of the public welfare.” The conservative majority “enlists the Framers in its defense without seriously grappling with their understandings of corporations or the free speech right, or with the republican principles that underlay those understandings ... To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is.”
Citing the work of legal scholar Zephyr Teachout, Stevens noted that “it is fair to say” that the Framers “were obsessed with corruption.” They understood this “to encompass the dependency of public officeholders on private interests ... They discussed corruption ‘more often in the Constitutional Convention than factions, violence, or instability.’ ... When they brought our constitutional order into being, the Framers had their minds trained on a threat to republican self-government that this Court has lost sight of.”
Scalia barely took Stevens’ argument seriously:
The Framers didn’t like corporations, the dissent concludes, and therefore it follows (as night the day) that corporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporations is relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted ... Even if we thought it proper to apply the dissent’s approach of excluding from First Amendment coverage what the Founders disliked, and even if we agreed that the Founders disliked founding-era corporations; modern corporations might not qualify for exclusion. Most of the Founders’ resentment towards corporations was directed at the state-granted monopoly privileges that individually chartered corporations enjoyed. Modern corporations do not have such privileges, and would probably have been favored by most of our enterprising Founders—excluding, perhaps, Thomas Jefferson and others favoring perpetuation of an agrarian society.
There is something breathtaking about defending a Court decision that overturned decades of precedent with the remarkably weak assertion that modern corporations “would probably have been favored by most of our enterprising Founders,” as if it were possible to know what the Founders would have made of Microsoft, Apple, General Motors, or ExxonMobil. All involved forms of economic organization unknown in 1787 and products that Hamilton, Madison, or Franklin could not have imagined. On the matter of fearing corruption, Stevens was surely closer to the Founders’ republican principles. And the very effort to convert a corporation into a person would have been as alien to the Founders as it was to Stevens. He wrote:
Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters ... It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.
The dissenting justice added a bit of common sense that seemed to escape the Court that day. “A democracy cannot function effectively,” he wrote, “when its constituent members believe laws are being bought and sold.”
Thus did conservative originalism help produce a decision about a set of institutions that the Founders would have found peculiar, involving an election campaign process totally unknown to them, on the basis of a theory that they would have considered bizarre.
E.J. Dionne Jr. is a columnist for The Washington Post and a senior fellow at the Brookings Institution. This article is excerpted with permission from his new book, Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent, which hit booksellers everywhere this week.