Litigation

?Citizens United:? Commentators? Views

By Peter Hardin

The Supreme Court’s landmark Citizens United v. Federal Election Commission is likely to have major repercussions for judicial elections in the states.

The ruling opens the door to corporate and union spending money  in judicial elections, a prominent election law expert writes while quoting Justice John Paul Stevens’ dissent, and it raises the “inherent risk of corruption” that can result in great harm to fair and impartial courts. What, then, can be done about this dilemma? asks law professor Richard L. Hasen of Loyola Law School, Los Angeles. His view, published in the New York Times, is rather bleak:

“The ways out of this box are not easy to see. Corporate spending limits are effectively off the table. Disclosure alone is unlikely to get enough attention, particularly for a public that pays scant attention to judicial races. Recusal motions against particular judges are going to be hard to win.

Even if the court is willing to entertain a fiction about the role of large, independent corporate and union spending plays in the campaigns, those in the public paying attention will not be fooled. Short of getting rid of judicial elections (a tall order in most jurisdictions), things are going from bad to worse.”

From Justice at Stake executive director Bert Brandenburg, however, comes the assertion that Citizens United  has a “silver lining” because “it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources.” Brandenburg, writing in the American Constitution Society blog, does not rule out a glimmer of hope:

“The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.”

It’s hard to find any such glimmers in the Slate Magazine piece written by Dahlia Lithwick, headlined “The Pinocchio Project: Watching as the Supreme Court turns a corporation into a real live boy.” Lithwick details Justice Stevens reading part of his dissent from the bench and insisting on the principle that that corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” The sketch continues:

“But you can plainly see the weariness in Stevens eyes and hear it in his voice today as he is forced to contend with a legal fiction that has come to life today, a sort of constitutional Frankenstein moment when corporate speech becomes even more compelling than the ‘voices of the real people’ who will be drowned out. Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is ‘to confuse metaphor with reality.’ Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.”

In the Washington Post, commentator E.J. Dionne recalls Chief Justice John Roberts Jr. promising judicial modesty at his confirmation hearings, and likening judges to umpires who call balls and strikes. But Thursday’s decision is a “reckless and dangerous piece of judicial activism,” Dionne contends, and Justice Roberts and colleagues “canceled the game altogether and decided on their own what the final score would be.”

The decision triggered discussion of whether corporations really will actually open their treasury purse strings for political spending on behalf of candidates, or opposing them.

“ We can expect existing unions to turn on the spigots even more openly, and for new entities to crop up to accept corporate money,” maintains Steve Hoersting, vice president of the Center for Competitive Politics, in National Review Online. “The only real question is whether corporations brave enough to take advantage of the opinion, and go against the Democrats, will risk audits or the nationalization of their businesses.”

Sara Jerome suggests in National Journal, however, “There may be some disincentives involved.” Disclosure requirements were upheld by the Supreme Court, and  corporations that top $10,000 for producing advertising in election season must report names of donors of $1,000 or more to help prepare or distribute the ad. The National Journal article quoted law partner Chris DeLacy of Holland & Knight as saying, “Anytime you are confronted with disclosing something publicly, that becomes a decision point for a corporation.”

Suggesting a measure of restraint by corporations in a new legal era was Eugene Volokh, a law professor at the University of California, Los Angeles. He writes in the New York Times:

“The Supreme Court?s Citizens United decision simply means that other corporations, and unions, will enjoy much the same First Amendment rights that media corporations have. My guess is that most business corporations will not exercise those rights to nearly the same extent that media corporations have.”

Full post as published by The Gavel on January 21, 2010 (boomark / email).