Citizens United and the Roberts Court's War on Democracy

• Citation: Vol. 27 No. 4
• Publication year: 2010

Georgia State University Law Review

Volume 27 , ,

Article 5

Issue 4 Summer 2011

3-13-2012

Citizens United and the Roberts Court's War on Democracy

Gene Nichol

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Recommended Citation

Nichol, Gene (2010) "Citizens United and the Roberts Court's War on Democracy," Georgia State University Law Review: Vol. 27: Iss. 4, Article 5.

Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/5

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CITIZENS UNITED AND THE ROBERTS COURT'S WAR ON DEMOCRACY

Gene Nichol*

There has been much hysteria expressed about the Roberts Court's decision in Citizens United v. Federal Elections Commission¹ The American Constitution Society called it "the most aggressive intervention into politics by the Supreme Court in the modern era." The Washington Post declared that the ruling "shakes the foundation of corporate limitations on federal state elections that stretch back a century." Jonathan Turley said the decision "will bring on a tsunami of sewer money."⁴ Fred Wertheimer concluded that the justices "had no idea what they were unleashing."⁵ Senator Russ Feingold charged that the members of the majority "completely disregarded their oaths" of office.⁶ Ronald Dworkin tagged Citizens United as "the decision that threatens democracy." Richard Hasen pronounced January 21, 2010 "a bad day for America." Even our cerebral, too dispassionate President claimed "the Supreme Court reversed a century of law that I believe will open the floodgates for special

* Professor of Law and Director, Center on Poverty Work & Opportunity, University of North Carolina.

1. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010).

2. See Monica Youn, Citizens United: The Aftermath, Am. Constitution Soc'y (June 2010), available at http://www.acslaw.org/files/ACS%20Issue%20Brief%20-%20Youn%20Citizens %20United.pdf.

3. Robert Barnes & Dan Eggen, Court Rejects Corporate Political Spending Limits, Wash. Post,

Jan. 22, 2010, at A1.

4. Jonathan Turley, Citizens United Ruling Brings on "Tsunami of Sewer Money," Nov. 3, 2010, http://jonathanturley.org/2010/11/03/citizens-united-ruling-brings-on-tsunami-of-sewer-money.html.

5. Fred Wertheimer, POLITICO Op-ed by Democracy 21 President Fred Wertheimer: Court's corruption of election law, Democracy 21, Dec. 15, 2010, http://www.democracy21.org/ index.asp?Type=B_PR&SEC=%7BAC81D4FF-0476-4E28-B9B17619D271A334%7D&DE=%7BD 2BF405D-127F-4DCC-B9AD-C95CC2012B46%7D.

6. Robert Barnes, In Wis., Feingold Feels Impact of Court Ruling, Wash. Post, Nov. 1, 2010, at A8, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/31/

AR2010103104314.html.

7. Ronald Dworkin, The Decision That Threatens Democracy, N.Y. Rev. of Books, May 13, 2010, at 63-67.

8. See Richard Hasen, Citizens United: What Happens Next?, Politico (Jan. 21, 2010), http://www.politico.com/arena/perm/Richard_Hasen_1FE691B8-7BF2-481C-B3BC-

BB4072BC1703.html.

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interests—including foreign corporations—to spend without limit in our elections."⁹ This apparently goaded Justice Samuel Alito to mouth the words "not true" at the State of the Union address as if he were a mere congressman from South Carolina. ¹⁰

It is my assignment, as I understand it, to contribute to, and expand upon, this unsophisticated hysteria. I am honored to do so. We all have our parts to play. Especially since, unlike most of today's panelists, I'm not really an election law expert. I have, however, worked on an array of these issues as an activist for a good while. And I've surely had more experience losing elections than anyone else you're likely to hear from during these deliberations.

I. Process

I begin by saying there are a few things about the Citizens United case that make me cranky. The first, I'm confident, we can agree about. on behalf of law students, professors, and all others not paid by the hour, I am sick of 175, 200, and 250 page opinions. I like Justice Stevens well enough, but an 88-page dissent is absurd, and cruel. I don't care if he did apologize for it.¹¹

And speaking of cruelty, especially at a law review conference, in the majority opinion, to bolster his claims, Justice Kennedy wrote: "Bellottfs dictum is thus supported only by a law review student

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comment, which misinterpreted Buckley'" Then he cites the unfortunate University of Pennsylvania student comment. Imagine being singled out explicitly in a Supreme Court opinion, explaining how lousy your student work product is. Good lord.

9. President Barack Obama, Weekly Address (Jan. 23, 2010) (transcript available at www.whitehouse.gov).

10. Martin Kady, Justice Alito mouths 'not true,' Politico, Jan. 27, 2010, http://www.politico.com/blogs/politicolive/0110/Justice_Alitos_You_lie_moment.html.

11. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 931 (2010) (Stevens, J., concurring in part and dissenting in part) ("I regret the length of what follows, but the importance and novelty of the Court's opinion require a full response.")).

12. Id. at 909 (majority opinion) (citing Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U. Pa. L. Rev. 386, 408 (1977)).

2011] WAR ON DEMOCRACY 1009

Second, on the cranky front, save us from these passive, modest

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jurists—judges who "just call balls and strikes." Plenty has been said about this grotesque hypocrisy, in this meeting and elsewhere. So I won't go on about it here. My favorite fusillade, thus far, though, is Senator Arlen Specter's claim in his farewell address that Chief Justice "Roberts promised to just call the balls and strikes and then moved the bases."¹⁴ But reaching so hard, overruling so much, dusting off so much, bringing up matters on their own, scheduling re-argument, effectively filing their own action—these are hardly the hallmarks of temperate and restrained justices. Then, remarkably, Justice Kennedy began the opinion explaining that "we are asked to reconsider Austin, and, in effect, McConnell"¹⁵ I suppose he was reluctant to say, "we've asked" ourselves. Justice Scalia got it right two years ago when he chided that this "faux judicial restraint is judicial obfuscation."¹⁶

I don't mind all this too much myself. There are, in fact, no non-activists on our high court. But I do wish we could take the "deferential, minimalist, strict constructionist, referee, balls and strikes" jargon out of our judicial-political repertoire. It is nauseating, if nothing else.

Third, speaking of Justice Scalia, God save us from the "occasional

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originalist." No vision of the original meaning of the First Amendment could support this decision unless it's rooted in such a lofty and controverted level of generalization that it loses all its cabining possibility. And constraint, of course, is the basis for originalism's power. We now require not only a theory of

13. This is the role Chief Justice Roberts declared for himself, famously, in his confirmation hearings. Confirmation Hearing on the...