The U.S. Supreme Court Ruling: Attorneys Speak Out

The New York Times blog Room for Debate has an ongoing discussion amongst the legal community on today's Supreme Court decision in Citizens United v. Federal Election Commission. The court's ruling "swept aside a century-old doctrine in election law, "ruling that the campaign finance restriction violated the First Amendment’s free speech principles. The dissenters said opening the floodgates to corporate money will corrupt democracy.

Following is a brief summary of comments contributed by attorneys. For more detail and followup you'll need to link to Room for Debate above. I have found their comments to be most interesting and even a little surprising in a few cases. All comments are taken directly from the blog.

Heather K. Gerken is the J. Skelly Wright Professor of Law at Yale Law School. She is a former law clerk for Justice Souter.

Reformers are outraged by the Supreme Court’s decision, which overruled its own precedent on independent corporate expenditures. As Nate Persily points out, as a practical matter the decision was just the last nail in the coffin; the Supreme Court had already substantially undermined the federal ban on independent corporate expenditures in earlier decisions.

Eugene Volokh is a professor of law at the University of California, Los Angeles. He is the founder and co-author of The Volokh Conspiracy blog.

Corporate money has already long been in politics; the most influential actors in most political campaigns are corporations. I speak here of media corporations, such as the one that owns the New York Times.

The Supreme Court’s Citizens United decision simply means that other corporations, and unions, will enjoy much the same First Amendment rights that media corporations have. My guess is that most business corporations will not exercise those rights to nearly the same extent that media corporations have.

Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles and the co-editor of the Election Law Journal.

I have many thoughts about what is wrong with today’s Supreme Court opinion: it is activist, it increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality. The way the opinion is written will make it very hard for Congress or state legislatures to put effective controls on money in campaigns, or even adopt effective public financing laws.
But I want to focus on the special problem that now arises for judicial elections. Just last term, Justice Kennedy (who also wrote today’s majority opinion in Citizens United), recognized the inherent risk of corruption that comes when someone spends independently to try to influence the outcome of judicial elections.

(Note: This is well worth reading in full.)

Joel M. Gora, a professor at Brooklyn Law School, has been a long-time lawyer for the American Civil Liberties Union and argued before the Supreme Court in Buckley v. Valeo (1976). He is the co-author of “Better Parties, Better Government: A Realistic Program for Campaign Finance Reform.” The views expressed here are solely his own.

This is a great day for the First Amendment. The Supreme Court has invalidated a ban which prohibited all corporations and all labor unions from speaking out about government and politics in any way that even mentioned a politician or an incumbent officeholder running for election.

In ruling this ban unconstitutional, the Court emphasized what no one seriously disputes: the primary purpose of the First Amendment’s guarantees of freedom of speech, press, assembly and petition is to enhance democracy by insuring an informed electorate capable of self-government.

Michael Waldman is executive director of the Brennan Center for Justice at N.Y.U. School of Law, and author, most recently, of “A Return to Common Sense: Seven Bold Ways to Save our Democracy.”

This decision by the Supreme Court may well dwarf in impact the results of Tuesday’s election in Massachusetts. It is breathtaking in its scope: it overturns doctrine dating back a century and laws upheld in 1990, that banned corporate managers from directly spending shareholder money in elections.

There was no trial record; no reason to reach the decision; a rushed re-argument (followed by a delay that put this neutron bomb square into the middle of the political season). This matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court. In that case, the court reached into the political process to hand the election to one candidate. Today it reached into the political process to hand unprecedented power to corporations.

Fred Wertheimer is the founder and president of Democracy 21, a nonpartisan, nonprofit organization that works to promote campaign finance reform and other political reforms. He is a lawyer on the amicus brief filed in the case by the Campaign Legal Center and Democracy 21.

Today’s Supreme Court decision in the Citizens United case is a disaster for the American people. It will unleash unprecedented amounts of corporate “influence-seeking” money on our elections and create unprecedented opportunities for corporate “influence-buying” corruption.

In a stark choice between the right of American citizens to a government free from influence-buying corruption and the economic and political interests of American corporations, five justices came down in favor of corporations. Chief Justice Roberts has abandoned the illusory public commitments he made to “judicial modesty” and “respect for precedent” to cast the deciding vote for a radical decision that profoundly undermines our democracy.