Friday, January 22, 2010

Thoughts on Citizens United

I am a big fan of the First Amendment. A big one. What's not to like about its ringing endorsement of free speech, religion, and assembly?

But I am also a big fan of democracy and fair elections.

That's why yesterday's opinion in Citizens United leaves me dissatisfied, even dumbfounded.

The specifics should be well-known by now: in its 5-4 ruling, the conservative wing of the Supreme Court overruled a twenty-year old precedent and struck down provisions of the campaign finance law that had been upheld seven years ago. Their message was simple: long live free speech. Or in Justice Kennedy's words, writing for the Court:

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

The liberals responded with a 90 page dissent. Their message was just as powerful: long live democracy, and God save this honorable Court.

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.

Opinions about the case abound. One common reaction would be to defend or attack the Court's ruling on the merits. This is great fun, and something law professors are quite good at. For the moment, the discourse remains at a much higher level of generality. To some, the Court dealt a severe blow to our Democracy, handed lobbyists a potent weapon to use against members of Congress, or, instead, the Court did what had to be done to defend our free speech -- the lifeblood or our democracy -- and "cherished American freedoms."

Seen this way, the question at the heart of the campaign finance debate comes into fuller view: how to decide between these competing arguments? How to choose one? Is the answer as simple as having the ability to count to five?

One answer, which the Court has used from time immemorial, points to the Constitution and the justices' oath to uphold it. In Citizens United, the argument is that the First Amendment is doing all the heavy lifting; the justices are simply doing their duty. This argument is fine as far as it goes. So is the story of the tooth fairy.

A much more intriguing answer is that the justices make it up as they go along. This is all about ideology and the justices' political attitudes. The justices themselves lend considerable fodder to this view, perhaps inadvertently. To see this, consider the Court's rejection of the avoidance doctrine.

Citizens United urged the Court to carve out an exception to the law's expenditure ban for non-profit corporations. If the Court had accepted this argument, it could have avoided the constitutional question. But of course, this argument is "not sustainable under a fair reading of the statute." Maybe so. One almost believes this to be true, but for the elephant in the room: The Namudno case. Then, the Court could interpret the Voting Rights Act's bailout provision in a way that steered the justices clear from the constitutional question. The only problem was, such a reading was not "sustainable under a fair reading of the statute."

In his concurring opinion in Citizens United, the Chief Justice does not hide the Namudno case under the rug, but cites it triumphantly, as a shining example of a Court doing its job, and doing it right. I would have thought that Namudno stood for exactly the opposite proposition: to what lengths will the Court go in order to reach its desired conclusion, notwithstanding the statutory text or the intent of Congress?

Such is the lesson of Citizens United. When five members of the Court set their sights on a price, they will stop at nothing, and neither precedent nor the statutory text will get in their way. Unless, of course, they change their minds.

This is the true measure of the philosopher king, bound not by his oath or duty but his legal acumen, his ability to get five votes or, as Justice Thomas reminded us in Holder v. Hall, his "imagination."

Something in our jurisprudence has indeed gone awry.