Who's activist now? In election spending case, conservatives

McClatchy NewspapersJanuary 21, 2010 

WASHINGTON — The Supreme Court's decision Thursday to lift long-standing limits on corporate campaign spending exalts free speech above fears about political corruption.

The 5-4 ruling exposes how the court's stark ideological divide is stronger than Chief Justice John G. Roberts' stated fealty to precedence and consensus building. It's a markedly activist decision, going well beyond what the justices were asked to do.

And, not least, the decision in Citizens United v. Federal Election Commission will almost certainly incite further efforts to unravel campaign finance restrictions in the name of the First Amendment.

"Political speech must prevail against laws that would suppress it, whether by design or inadvertence," Justice Anthony Kennedy wrote for the court's majority.

In the much-anticipated decision, the court's conservative majority declared that the limits on so-called "independent expenditures" by corporations violate First Amendment free-speech rights. This opinion frees corporations to spend money from their own treasuries on ads and other advocacy efforts.

The reasoning presumably extends to labor unions, governed by the same campaign restrictions as corporations. The decision, though, does not affect direct corporate or union contributions to candidates. Those still will be banned.

The decision strikes down part of a 2002 campaign finance law, which banned direct corporate spending on "electioneering communications" within 60 days of a general election and 30 days of a primary. The decision also reverses a 1990 Supreme Court decision that had upheld a broader ban on corporate campaign spending.

"Were the court to uphold these restrictions, the government could repress speech by silencing certain voices," Kennedy wrote.

Politically, supporters and opponents alike agree the decision will lead to more corporate and union spending in campaigns. Justice John Paul Stevens predicted this "dramatically enhances the role of corporations and unions."

Legally, the decision could have equally dramatic effects. These include shaping the long-term jurisprudential reputations of Roberts and his colleagues.

During his 2005 Senate confirmation hearing, Roberts assured lawmakers that he would strive to achieve more unified court decisions. He further insisted that "judges have to have the humility to recognize that they operate within a system of precedent" that binds the court.

However, in what New York University Law School Professor Burt Neuborne called a "terrible, terrible body blow" to the court's institutional standing, Thursday's decision explicitly reversed an entire 1990 decision and part of a 2003 decision. Stevens spent a good portion of his 90-page dissent denouncing the seeming disregard for stare decisis, the principle of heeding past decisions.

"The majority blazes through our precedents, overruling or disavowing a body of case law," Stevens wrote, adding that "the path it has taken to reach its outcome will, I fear, do damage to this institution."

Ironically, the 57-page opinion that united the court's conservative wing might also provide ammunition for critics of "activist" judges.

The organization Citizens United, which produced the anti-Hillary Clinton movie that was at the heart of the case, explicitly ruled out a broad "facial challenge" to the 2002 campaign finance law. Instead, the group's members were making a more modest challenge to how the law was "applied" to them.

"Hillary: The Movie" blasted Clinton amid her unsuccessful presidential run. The initial Supreme Court arguments heard last March centered on whether campaign finance restrictions covered the Clinton movie, though the film never explicitly told viewers to vote against her.

In an unusual twist, though, the court first ordered a second round of arguments to expand the case. The court's final decision Thursday did what Citizens United had given up on, which is to explicitly strike down part of the campaign finance law.

"Any other course of action would prolong the substantial, nationwide chilling effect caused by (the law's) prohibition on corporate expenditures," Kennedy wrote.

League of Conservation Voters President Gene Karpinski quickly warned the ruling "will open the floodgates for oil companies like Exxon to spend vast sums of money to influence the outcome of federal elections." More sanguine, legal scholar Ilya Shapiro of the libertarian Cato Institute insisted that "more spending — more political communication — leads to better informed voters."

"This case will lead to more spending, and that's a good thing," agreed former Federal Election Commission member Bradley Smith.

In the courts, Yale Law School Professor Heather Gerken predicted the Citizens United decision will "jeopardize restrictions" Congress might want to impose on political activities in the future. The decision, notably, undercuts legislative arguments based on preventing the appearance of corruption.

"The appearance of influence of access . . . will not cause the electorate to lose faith in our democracy," Kennedy wrote.

Kennedy was joined by Roberts and associate justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Associate justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined Stevens in dissent.

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