Legal News

Got a Beef With Corporate America? Steer Clear of This Supreme Court

By Ashby Jones

The Citizens United opinion handed down by the Supreme Court last month, which gave corporations a much greater freedom to spend on elections, could dramatically shift the political landscape.

That much we know.

But what’s been less discussed, frankly, is how we got here. That is, what sorts of cultural pressures led us to a point in which five Supreme Court justices would make a ruling that reflected so much trust, so much respect, of corporate America?

David Savage, writing for the LA Times, addresses the issue in a story out Wednesday.

According to Savage, the ruling “reflects a profound shift among the conservative justices” on thinking about corporations. Whereas once upon a time, like the mid 1970s, Republican-appointed justices still held a somewhat skeptical view of corporations. But since then, things have changed. Writes Savage:

The change is a product of the Reagan era of the 1980s, when the administration sought to free business from government regulation. All five justices who made up the majority in last month’s case, Citizens United vs. Federal Election Commission, were either appointed by Reagan or worked as young lawyers in the Reagan administration.

“This is a different brand of conservatism,” said Trevor Potter, an election law expert who served as counsel to Arizona Republican Sen. John McCain’s presidential campaign. “The justices are shaped by society. Those that came after the Great Depression saw government regulation of corporations as natural and necessary. This younger generation sees it very differently. They have a real distrust of government.”

Whether this is a good thing, of course, depends on your own personal views of government and corporations. Fred Wertheimer, a longtime champion of campaign finance laws, throws at the current court out allegations of judicial activism. “They threw out 100 years of national policy, and they did it by inventing a brand-new right for corporations to participate in politics,” he said.

But Allison Hayward, a George Mason University law professor and critic of the campaign funding laws, told Savage that the court’s decision stood up for the very old right of free speech in politics.

“This was a moment for them to say, ‘Enough is enough,’ ” she said. “There’s been a constitutional cloud over the expenditure bans for a very long time.”

Full post as published by Law Blog - WSJ.com on February 10, 2010 (boomark / email).