Did the Supreme Court Make the Right Decision in the Citizens United Case After All?

For all the fuss about Supreme Court nominations, very few Supreme Court decisions are actually remembered by history, and even fewer are notorious for getting it wrong. In fact, there are really only three: Dred Scott (1857), which upheld slavery; Plessy v. Ferguson (1896), which upheld racial segregation; and Bowers v. Hardwick (1986), which upheld state anti-sodomy laws. It took the Civil War to overturn Dred Scott. Plessy v. Ferguson was reversed 58 years after it was issued (in the most famous Supreme Court case of all, Brown v. Board of Education of Topeka). It took only 17 years for the court to decide, in Lawrence v. Texas (2003), that it had made a mistake, and to reverse Bowers v. Hardwick.

Any others? Well, Bush v. Gore, which decided the 2000 election, would certainly be on my list of disgraceful Supreme Court decisions, but the circumstances were so bizarre that they are unlikely to arise again. Conservatives hope the historical consensus about famously bad Supreme Court decisions will extend someday to Roe v. Wade (1973), the decision legalizing abortion. Liberals hope that someday the Lousy Decision Hall of Fame will include Citizens United v. Federal Election Commission (2010), which held that corporations (and unions) have the right to free speech under the First Amendment.

Already, Citizens United is probably the one Supreme Court decision since Roe that is despised by name, though these decisions are despised by different groups. For conservatives, Roe v. Wade has become shorthand for the profusion of new, judge-created “rights” in the 1960s and alleged liberal excess of all sorts. For liberals, Citizens United has come to represent the nefarious role of money in politics, which many feel has eroded if not destroyed our democracy. Money is blamed above all this year for Donald Trump, although Citizens United doesn't apply to him if, as is widely supposed, he is a human being and not a legal fiction. More generally, big business will always be bigger than small business, and rich people will always have more money than poor people. Should that entitle them to more influence on the political process? (A further complication is that rich companies are owned not by rich people, by and large, but by pension funds, which are holding the money on behalf of the middle class.)

‘Money isn't speech” and “corporations aren't people” are the mantras of Citizens United critics. Citizens United happens to be a group that wanted to distribute a documentary about Hillary Clinton. It had already been established, in Buckley v. Valeo (1976), that anyone has a First Amendment right to spend his or her own money advancing his or her own cause, including a candidacy for political office. Citizens United extended this right to legally created “persons” such as corporations and unions.

The First Amendment right of free speech is generally considered to be a liberal cause. So it's disappointing to see how quickly liberals abandon it when the speech is something they disagree with. Money isn't speech? Ridiculous. Of course it is. The very act of spending money sends a message, like “liking” something on Facebook. Also, it takes money to “speak.” It's precisely because people and organizations that have more money can speak more (more TV commercials, more lawn signs) and speak more loudly (perhaps a better class of political consultant) that the court's conclusion in Citizens United bothers people so much. At the same time, no amount of money automatically translates into a certain amount of influence over the political process. Arianna Huffington's husband spent almost $30 million in a futile attempt to win a Senate seat from California. He lost and today, despite his marriage to and divorce from Arianna Huffington, his views on anything don't carry a lot of weight. (“Not true, darling. Not true at all,” says Arianna. “I always consult with Michael before endorsing a Supreme Court nominee.”)

The analogy I like (as did the Supreme Court in its ruling) is to a newspaper. Suppose Citizens United were reversed and President Trump decided one day that he was sick of The New York Times. So he proposes a law setting a ceiling on the amount any individual or organization can spend putting out a newspaper. Constitutional? I hope not. But it's hard to see the difference in principle between this and a law limiting the amount a corporation or union may spend promoting a political candidate.

Justice Anthony Kennedy, who wrote the 5–4 opinion in the Citizens United case, spends much of his time swatting flies. The laws that Citizens United overturns specifically exempt media companies. What is a media company and why should a media company get special treatment? On the other hand, if media companies don't get special treatment, the law even more clearly violates the First Amendment. For that matter, what is an “electioneering communication”? That's what you couldn't do within 60 days of an election (30 days for a primary) if you wanted to stay on the right side of the law before the court tossed the law out. “The First Amendment,” Kennedy wrote, “does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”

You can't deny that there's a problem: big corporations and rich people do have too much influence, should pay more taxes, and so on. Can anything be done about this? Sure—even the Constitution is not immutable. If you don't like something in the Constitution, you are not without recourse. You can always try for a constitutional amendment. There are several out there now, addressing the unpopularity of Citizens United. Versions differ, but all of the proposed amendments aspire to overturn the Supreme Court ruling and re-install contribution limits in federal elections. I don't know about you, but I get nervous when people start talking constitutional amendment. Who knows what else will sneak into the Constitution while everybody is looking the other way? You head to Philadelphia (for old times' sake) with a pencil and a big eraser, intent on cleaning up this First Amendment mess and maybe, if there's time, also using your eraser on the Second, with its “right to bear arms.” (I mean, what were they thinking?) You turn your back for a moment, just to remind yourself what's in Amendment 19 (giving women the vote) or Article I, Section 6, of the Constitution (a nice one, enumerating when and where members of Congress can be arrested), and suddenly someone has run away with the 14th and it's unconstitutional to make a salad without balsamic vinegar.

Anyway, you can't easily amend your way out of the problems raised by Citizens United, as you can the problems raised by, say, the Second Amendment: Citizens United, unlike the Second Amendment, is not an out-of-date decision that needs to be rehabbed. It was a good decision. It was correctly decided. It is not in there by historical accident. It should not be reversed. The proper way to “fix” the problem that many people see is to change people's minds, not to change the Constitution, which would require inserting language into the First Amendment that directly violates First Amendment values. First Amendment values say that if you want a more “level playing field” you must raise the low ground. You can't level the playing field by lowering the high ground.

And the whole problem might be solved by Stein's Law (named for the late economist Herb Stein): “If something cannot go on forever, it will stop.” If enough people are enraged enough by the imbalance of political power caused by money, they will vote against big money, which will turn it into a negative.