The Real Danger behind the Citizens United Decision

Jessica Levinson
Associate Clinical Professor at Loyola Law School, Los Angeles, and President of the Los Angeles Ethics Commission.

While many elected officials, members of the media, and members of the general public have expressed outrage over the Supreme Court’s recent decision in Citizens United, the real danger of that decision lurks beneath the surface. The decision, which allows corporations to use general treasury funds to make ads that support or oppose candidates for elected office, has been widely criticized as giving corporations a larger voice in elections. There can be little doubt that the Court’s decision will do just that.

However, the truly dangerous part of the decision is not its outcome; it is instead the way that the Court decided the case.

Citizens United is a conservative non-profit corporation which sought to air a movie on Video-On-Demand critical of then-Presidential Candidate Hilary Clinton during her primary election battle with now-President Barack Obama. When it brought its case to the Supreme Court, Citizens United brought forth a narrow challenge, claiming that a portion of Bipartisan Campaign Reform Act (commonly known as McCain-Feingold) was unconstitutional only as applied to it. Citizens United had abandoned its much broader claim which asked the Court to declare a provision of McCain-Feingold to be unconstitutional as applied to everyone.

Instead of deciding the issue before it, the Court ordered re-argument, asking the parties to explain why a 1990 decision upholding the rights of states to make laws virtually identical to the one at issue in McCain-Feingold and a 2003 decision upholding the provision now again at issue should not be overturned. The Court transformed the case before it, vastly broadening the question posed from one concerning the constitutionality of the provision as applied only to one group, to one challenging the constitutionality of the provision in general.

As Justice Stevens points out in his dissent in Citizens United, broad challenges are disfavored and fly in the face of principles of judicial restraint. This truly frightening aspect of Citizens United demonstrates that there is nothing to stop the Court from once again agreeing to hear a case which asks one question, and instead deciding another issue entirely. The Court impermissibly expanded its role from that of deciding cases or controversies before it to creating a case or controversy to decide.

The fun doesn’t stop there.

What, you may ask, has happened to the doctrine of stare decisis? Broadly, this judicial doctrine means that judges should respect prior case rulings. This doctrine is meant to foster certainty and respect for the judicial system. As Justice Stevens says, stare decisis must mean something more than “the preferences of five Justices.” Unfortunately, after the Court’s decision in Citizens United, we see that it does not. The difference between the Citizens United case and the two cases that the Court overturned is simply that Justice Sandra Day O’Connor retired, and Justice Samuel Alito, who is more hostile to campaign finance reform laws, took her place on the bench.

As Justice John Paul Stevens astutely stated, “[t]he only relevant thing that has changed since [the two decisions that were overturned in Citizens United] is the composition of this Court.” The day the Supreme Court decided the Citizens United case was a sad day for the American public indeed, just not for the reasons we’ve previously thought.

The Court’s ultimate conclusion may not have as great affect on electoral politics as some may think. Even prior to the Court’s decision, corporations have hardly been constrained. Since its passage in 2002, the Court has chipped away at portions of McCain-Feingold.

Three years ago, in a 2007 case, the Supreme Court held that the provision of McCain-Feingold which they invalidated in Citizens United could only serve to prevent corporations from using general treasury funds if the advertisement in question was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Hence, the creator of an ad need only throw in one statement or image about a legislative issue and poof, like magic it cannot be said that the ad is subject to no other reasonable interpretation other than as asking the public to vote for or against a certain candidate.

The true purpose of the section of McCain-Feingold at issue in Citizens United was eviscerated by the Supreme Court years ago. The test the Court laid out in its 2007 decision was so easy to get around that I venture to say the average kindergartner would have no problem finding her way around the dictates of that case.

Imagine the following advertisement: “Why does Jessica Levinson want to ruin the environment for our children? She clearly cares nothing about your child’s future. Call Jessica and ask her why she wants your child to choke on polluted air.” While its difficult to view this advertisement as anything but an ad urging voters not to vote for Jessica Levinson, it cannot be said that this ad is susceptible to no other reasonable interpretation. It can also be categorized as an ad about the environment, and for that reason, since 2007, corporations have remained free to spend unlimited general treasury funds on such ads.

There can be no doubt that the Citizens United decision removes remaining barriers to corporations’ participation in electoral politics. However, the aspect of the decision that should inspire fear in the public is the Court’s decision to pose and answer a different question than the one asked by the party and to overturn prior cases based on nothing more than the changing composition of the Court.

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