The Unecessary Radicalism of Citizens United

One of the many striking things about the Supreme Court's infamous Citizens United decision is how poorly the facts of the case fit the extremely sweeping holding. The potential First Amendment issues involved with campaign finance regulation exist on a spectrum. Political editorials, even when published in corporate-owned media and attempting to influence the campaign, are obviously "pure speech" that can be restricted only in extraordinary circumstances. Direct donations to candidates, on the other hand, are further removed from pure speech and also raise serious problems of democratic equality, so the leeway that can be given to government to restrict them might be greater. Political advertising falls somewhere in the middle. Citizens United involved the suppression of a political campaign documentary about Hillary Clinton—something that doesn't neatly fit into the categories, but is closer to "pure speech" than being a campaign expenditure. While many progressives disagree, I wrote at the time—and still believe—that the narrow outcome of the case was probably right. The FEC's suppression of Hillary: The Movie did raise disturbing First Amendment questions that were not adequately answered by the government. The real problem with Citizens United was that it went far beyond the narrow facts of the case to issue an unnecessarily broad, radically pro-corporate holding that renders many more defensible restrictions and potential restrictions unconstitutional, paving the way for further elite domination of the American political process. Jeffrey Toobin's New Yorker blockbuster—an excerpt from his upcoming book on the Court—makes it clear just how far out of its way Chief Justice Roberts and his conservative colleagues went out of their way to reach this unnecessarily broad result. As Toobin reminds us, Ted Olson—the litigator for Citzens United—advanced an appropriately narrow statutory argument, sensibly arguing that the law was not intended to reach the showing of a documentary. When the five conservatives decided to go far beyond what even Olson wanted, Justice David Souter wrote a fierce dissent criticizing the cynicism and hypocrisy of the majority. Roberts then manipulated the agenda to prevent Souter's dissent—he had already announced that his leaving the Court at the end of the term—from being issued:

At the argument of a death-penalty case known as Cone v. Bell, Roberts had berated at length the defendant’s lawyer, Thomas Goldstein, for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations. As the senior Justice in the minority, John Paul Stevens assigned the main dissent to Souter, who was working on the opinion when he announced his departure, on April 30th. Souter wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of Of violating the Court’s own procedures to engineer the result he wanted. Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall.

Of course, a Chief Justice who has five votes can do as he pleases—and Roberts did. The entirety of Toobin's article—which does an excellent job for the lay reader of putting the impact of Citizens United in context—is very much worth reading.

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