by Sahil Kapur
Two and a half years after the landmark Supreme Court ruling that invited a flood of corporate money in U.S. elections, the justice who led the barnstorming dissent says he’s increasingly convinced the decision won’t stand the test of time.
Decision Will Probably Be Revisited
In a speech at the University of Arkansas, retired Justice John Paul Stevens argued that events since the decision “provide a basis to expect that the Court already has had second thoughts about the breadth of the reasoning” and will likely return to its 5-4 decision in Citizens United v. FEC.
Stevens noted that Justice Anthony Kennedy’s majority opinion did not explicitly address the possibility that the decision could open up the floodgates for foreign entities to bankroll U.S. elections. It’s a notion that President Obama warned of in his 2010 State of the Union, prompting Justice Samuel Alito to famously shake his head and mouth “not true.”
When the justices carve out that exception, argued Stevens, they will “create a crack in the foundation of the Citizens United majority opinion.”
“[T]he Court must then explain its abandonment of, or at least qualify its reliance upon, proposition that the identity of the speaker is an impermissible basis for regulating campaign speech,” Stevens said Wednesday night, according to prepared remarks. “It will be necessary to explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters.”
Potentially Fatal Flaw
Stevens — who received the Presidential Medal Of Freedom one day before his speech — argued that a later decision to circumscribe First Amendment rights when political speech benefits terrorist organizations reveals a potentially fatal flaw in the premise of Citizens United. “I think it necessarily follows that such speech made or financed by the terrorist organization itself would receive no constitutional protection,” he said.
Once that distinction is made, the Ford-appointed justice continued, it would bring a core pillar of Citizens United back into question. If foreign entities are barred from bankrolling U.S. elections, then the court is conceding that “the identity of some speakers may provide a legally acceptable basis for restricting speech.”
Not only would that require the court to explicitly explain why corporations meet the standard (Stevens argues they shouldn’t because they can’t vote), it would also bring into question the blurring of lines between issue advocacy and campaign speech in Citizens United.
Widely Unpopular Decision
The Citizens United decision was predicated on an encompassing interpretation of First Amendment rights that won over some unlikely allies. But the January 2010 ruling remains broadly unpopular and a topic of ire among advocates of campaign finance reform — some movement progressives are even pushing for a Constitutional amendment to overturn it. It has been savagely mocked by comedian Stephen Colbert.
Sitting justices who dissented in the 5-4 ruling haven’t given up on reversing the controversial ruling, either. A recent dust-up between the Supreme Court and Montana — whose courts recently upheld its ban on corporate expenditures in state elections — incited Justices Ruth Bader Ginsburg and Stephen Breyer to petition the court to reconsider Citizens United.
“Montana’s experience — and experience elsewhere since [the decision] — make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” Ginsberg wrote. Granting certiorari, she added, “will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.” Φ
Sahil Kapur is a congressional reporter for TPM (talkingpointsmemo.com). He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.