I knew that a case about protected speech was before the Supreme Court and I knew which way that court would go. The Roberts court is doing more legislating from the bench than any liberal court ever did. I’m not a lawyer but here are comments from some people who are:
Many of those commenting on the decision inCitizens United v. Federal Election Commission have focused on the power-grab part. I agree with them. It was unnecessary for the court to go so far when there were several less-radical grounds available. It was audacious to seize the opportunity to overrule precedents when the parties had not pressed this issue and the lower courts had not considered it. It was the height of activism to usurp the judgments of Congress and state legislatures about how best to prevent corruption of the political process.
“If it is not necessary to decide more, it is necessary not to decide more,” a wise judge once wrote. That was Chief Justice John G. Roberts — back when — and dissenting Justice John Paul Stevens rightly turned that line against him.
As bad as the court’s activism, though, was its shoddy scholarship.
I’m not a legal scholar, but I assumed that this too live crew was not up to the task.
The thing that I didn’t understand is how it became true that spending money was somehow ‘speech’ that was protected by the first amendment and how corporations got to have the same rights as people but none of the responsibilities. Here’s a recap:
Go back almost a century, to the time when the modern corporation was created, and you’ll find laws that prohibit or limit the use of corporate money in elections. And yet this week, a 5-4 Supreme Court struck down the limits that Congress passed in 2002 in this tradition in the case Citizens United v. FEC.
The majority’s ruling unleashes a new wave of campaign cash and adds to the already considerable power of corporations. The court’s main rationale is that limits on using corporate treasuries for campaigns are a “classic example of censorship,” as Justice Anthony Kennedy wrote for the majority. To get there, Kennedy depends on two legal theories that blossomed as constitutional principles in the mid-1970s: money is speech and corporations are people. Both theories are strange, if not simply wrongheaded—why, according to the Constitution or common sense, would money be speech or corporations be people? The court has also employed theories not uniformly but, rather, as constitutional cover for dominance of the electoral system by corporations and by the wealthy.
The first theory appeared in a 1976 decision, Buckley v. Valeo, which invalidated some campaign-finance reforms that came out of Watergate. The Court concluded that most limits on campaign expenditures, and some limits on donations, are unconstitutional because money is itself speech and the “quantity of expression”—the amounts of money—can’t be limited.
President Obama smacks this idea down in rather general terms and scary words, but the truth is that the Supreme Court has gone off the rails of rational thought.
I hope President Obama gets to appoint a couple of justices that even things out.