Wednesday, March 3, 2010

The Public vs. the Supreme Court: A Comment on the Citizens United Case

by Prof. Steven J. Heyman

This post is cross-posted at the Chicago-Kent Faculty Blog.

The following is the text of remarks that Professor Heyman made at a forum on Citizens United v. Federal Election Commission which was held at Chicago-Kent on February 24, 2010, and which was co-sponsored by the Student Bar Association and the Chicago-Kent chapters of the American Constitution Society and the Federalist Society. Professor Sheldon Nahmod also spoke at the forum; his discussion of the case can be found here and here.

In the Citizens United case, the Supreme Court was sharply divided, with five conservative Justices in the majority and four liberals in dissent. The immediate political reaction also followed predictable lines. President Obama and the congressional Democrats denounced the decision as a fundamental blow to our democracy. On the other hand, Republicans like Mitch McConnell, the Senate minority leader, hailed the decision as a victory for freedom of speech.

All of this might lead one to believe that the issue in Citizens United is just one more area where the country is deeply divided along ideological lines, just as it is on issues like health care reform or government spending or abortion. But there are some indications that this isn’t true. For example, last week the Washington Post and ABC News released a poll that showed that four out of five Americans disagree with the Court’s decision in this case. Still more remarkably, the poll shows very little difference among political groups: 85 percent of Democrats oppose the ruling, but so do 81 percent of Independents and 76 percent of Republicans. And the poll also suggests that this is an issue that people feel deeply about: 65 percent of respondents say that they are strongly opposed to the decision, and 72 percent say they would support congressional action to reinstate the limits on corporate advertising in elections.

So the question that arises is this: What led the Supreme Court to make a decision that is so broadly rejected by the public?

On one level, I think the answer is that the Court’s position rests on a series of assumptions that most people don’t share. The first of these assumptions is the majority’s claim that under the First Amendment, corporations have the same fundamental right to free speech that individuals do. Justice Kennedy doesn’t actually say that a corporation is just like a natural person. But he does say that a corporation is an “association[ ] of citizens,” and that this gives a corporation the same First Amendment rights as anyone else. (Slip op. at 38; see also Scalia con. op. at 8) Justice Thomas recently made this point in a talk to a law school audience like this one. Thomas said: “If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights [to freedom of speech and association]. * * * If you all then formed a partnership to speak, you’d say we still have [these rights]. But what if you put yourself in a corporate form?” According to Justice Thomas, the result should be exactly the same. But I think that most people would say that there’s all the difference in the world between a group of citizens who come together for political or expressive purposes, like the Republican Party or the Sierra Club, and a business corporation that is formed to engage in economic activity.

In Citizens United, the majority bases its decision not only on the inherent right of corporations to speak, but also on the right of the public to hear them. According to Justice Kennedy, the capacity that speech has to inform the public doesn’t depend on the identity of the speaker. McCain-Feingold’s restrictions on election spending “muffle[] the voices" of corporations and so prevent the public from becoming fully informed. (Slip op. at 38 (quoting an earlier opinion by Justice Scalia; see also Scalia con. op. at 9).) In this way, Justice Kennedy says, the restrictions undermine “the integrity of the electoral process.” (Slip op. at 17, 32.)

Once again, I think that most people would regard these assumptions as quite unrealistic. Justice Kennedy talks as though election advertising involved a reasoned presentation of information and argument. But as anyone who’s ever seen these ads knows, that’s simply not the case. It’s true that some election ads contain information. They also contain a great deal of imagery and rhetoric, not to mention distortions and outright lies. And those are the good ads. There’s almost nothing that a reasonable person would enjoy doing less than watching the ads that run just before an election.

Now obviously that doesn’t mean that election ads aren’t protected by the Constitution. The First Amendment isn’t limited to reasoned discourse. As Justice Brennan once wrote, the Amendment is meant to protect speech that is “uninhibited, robust, and wide-open, and that * * * may well include vehement, caustic, and * * * unpleasantly sharp attacks” on political figures. (New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).) That’s all part of the rough and tumble of politics in a democratic society. But it does matter who’s taking part in this process. It’s one thing to say that politicians may have to mix it up with their political opponents or with ordinary citizens. It’s another thing to say that they have to engage in a cage match with the Chamber of Commerce or the pharmaceutical industry.

It also seems strange for the majority to say that corporations are currently muzzled and unable to get their views out. The McCain-Feingold restrictions only applied to the period of a month or two before an election. They didn’t restrict ads at other times, or even pre-election ads that did something other than to support or oppose candidates for office. Most importantly, the law also allowed corporations to form political actions committees or PACs, through which its employees could pool their resources and take part in election campaigns. So the idea that corporations were unable to get their views out is unfounded. And the same is true of many of the other assertions that the majority makes: for example, the claim that advertising restrictions hurt small corporations more than large ones, since large ones have the resources to engage in lobbying; or the claim that there is no reason to fear that corporations will support one side rather than another in the political arena; or the claim that there is no principled way to distinguish between media companies and other corporations, so that if Congress could restrict election ads by businesses, it could also ban editorials in newspapers.

In all of these ways, the Citizens United case rests on assumptions that most people would find unrealistic. And this helps to explain how the Court reached a decision that is so at odds with public opinion. But I think the source of the disconnect lies deeper, in the vision of politics that animates the Court’s decision. According to Justice Kennedy, there’s nothing wrong with “using ‘resources amassed in the economic marketplace’” to gain an “‘advantage in the political marketplace.’” (Slip op. at 34 (quoting -- and overruling -- Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659 (1990).) And by the same token, there is nothing wrong with individuals or corporations using their wealth to gain “influence * * * or access to elected officials.” (Slip op. at 43) As Justice Kennedy puts it:

"'Favoritism and influence are * * * [un]avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness." (Slip op. at 43-44 (quoting his own earlier dissenting opinion in McConnell v.FEC, 540 U.S. 93, 297 (2003).)

To employ a term that we use in the first-year Legislation class, this passage reflects a view called interest-group pluralism – that is, the view that politics essentially involves a conflict between different groups, each of which seeks to promote its own interests through the political process. Many political scientists and others would regard this view as a fairly accurate description of the American political system. But it’s a view that many Americans find deeply troubling. For them, the domination of politics by special interests is precisely what’s wrong with our political system. This public attitude is at its height right now, in the wake of the government bailouts of the banks and the auto industry and other institutions. This is what underlies much of the anger that runs all the way across the political spectrum, from the Tea Party movement on the right to corporate critics on the left. Yet in the Citizens United case, the Supreme Court not only endorsed the interest-group pluralist view of politics, but elevated it to the status of constitutional doctrine.

I would suggest that this is what lies at the heart of the public’s reaction to Citizens United. The financial crisis, the recession, and the situation in Washington have left many people feeling deeply anxious and frustrated. They’re worried about their ability to control their own fate as individuals, as well as the fate of the country itself. In this context, the Citizens United decision seems to undermine democracy and to make the government even more captive to special interests. As a result, there’s a good deal of popular support for responding to the decision by imposing new restrictions on corporate involvement in elections.

In his State of the Union address, President Obama called on Congress to take action. The leading proposal in Congress right now is a Democratic bill that’s sponsored by Senator Charles Schumer of New York and Congressman Chris Van Hollen of Maryland. As the New York Times reports, the bill would do the following things:

"[1] [It] would tighten existing bans on spending on political advertising by foreign companies so that it would apply to any company with at least 20 percent foreign ownership, a majority of directors who were not U.S. citizens, or ultimate control of the political decisions by a foreign government or company.

"[2] It would bar government contractors or banks who received bailout money from spending money on political advertising.

"[3] It would require the chief executive of a company buying a political commercial to appear at the end taking responsibility, just as candidates must now do. For commercials bought by advocacy groups, the biggest donor would be required to appear. The bill would also require such commercials to list the names of the five biggest donors.

"[4] It would force corporations, nonprofits, labor unions and trade associations to set up “political accounts” and report details of all their spending through the federal election commission.

"[5] It would require companies or organizations that employ registered lobbyists to report each political expense of $1,000 or more.

"[6] It would require publicly traded corporations to disclose any political activity to their shareholders on their company web sites within 24 hours, then follow up with more comprehensive disclosure in their annual reports.

"[7] It would require television and radio media companies to provide certain rates and advertising opportunities to candidates who face opposition from corporate-funded commercials.

"[8] It would expand prohibitions on coordinating spending with candidates by banning corporations from discussing any planned commercials that mentions a federal one federal candidate with any other candidates."

I don’t think that anyone believes that the Schumer-Van Hollen bill would have a huge impact on corporate electoral spending, though it would probably have some impact. And if the bill passes, then it will be promptly challenged in court. But the immediate question is whether a bill like this is likely to pass. Given the way things are going in Washington these days, you don’t want to hold your breath. As you all know, the obstacles to getting anything through the Senate are very high. But it will be very interesting to see what, if anything, Congress does in response to Citizens United.

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