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The Devastating Decision

Ronald Dworkin
FEBRUARY 25, 2010 ISSUE

Against the opposition of their four colleagues, five right-wing Supreme Court
justices have now guaranteed that big corporations can spend unlimited funds
on political advertising in any political election. In an opinion written by
Justice Anthony Kennedy and joined by Chief Justice John Roberts and
Justices Samuel Alito, Antonin Scalia, and Clarence Thomas, the Court
overruled established precedents and declared dozens of national and state
statutes unconstitutional, including the McCain-Feingold Act, which forbade
corporate or union television advertising that endorses or opposes a particular
candidate.
This appalling decision, in Citizens United v. Federal Election Commission,
was quickly denounced by President Obama as devastating; he said that it
strikes at our democracy itself. In his State of the Union speech of January
27, he said, Last week, the Supreme Court reversed a century of law that I
believe will open the floodgates for special interestsincluding foreign
corporationsto spend without limit in our elections. He is right: the decision
will further weaken the quality and fairness of our politics.
The Court has given lobbyists, already much too powerful, a nuclear weapon.
Some lawyers have predicted that corporations will not take full advantage of
it: they will want to keep their money for their business. But that would still
permit carefully targeted threats. What legislator tempted to vote for health
care reform or Obamas banking reorganization would be indifferent to the
prospect that his reelection campaign could be swamped in a tsunami of
expensive negative advertising? How many corporations fearful of
environmental or product liability litigation would pass up the chance to tip
the balance in a state judicial election?
On the most generous understanding the decision displays the five justices
instinctive favoritism of corporate interests. But some commentators,

including The New York Times, have suggested a darker interpretation. The
five justices may have assumed that allowing corporations to spend freely
against candidates would favor Republicans; perhaps they overruled longestablished laws and precedents out of partisan zeal. If so, their decision would
stand beside the Courts 2000 decision in Bush v. Gore as an unprincipled
political act with terrible consequences for the nation.
We should notice not just the bad consequences of the decision, however, but
the poor quality of the arguments Justice Kennedy offered to defend it. The
conservative justices savaged canons of judicial restraint they themselves have
long praised. Chief Justice Roberts takes every opportunity to repeat what he
said, under oath, in his Senate nomination hearings: that the Supreme Court
should avoid declaring any statute unconstitutional unless it cannot decide the
case before it in any other way. Now consider how shamelessly he and the
other justices who voted with the majority ignored that constraint in their haste
to declare the McCain-Feingold Act unconstitutional in time for the coming
midterm elections.
Citizens United, a small nonprofit corporation almost entirely financed by
individual contributions, had made a very negative film about Hillary Clinton.
It asked the Court only to rule that its method of distributing that film, on a
video-on-demand service, was not outlawed by the Act. It offered several
arguments, some of them plausible, for interpreting the Act that way. So the
Court did not have to decide whether to overrule the Act: it could have agreed
with Citizens United while reserving that larger question. But after they first
heard arguments in the case, the five justices declared that they wanted, on
their own initiative, to consider declaring the Act unconstitutional. They
introduced that unnecessary issue themselves and then scheduled an
emergency special hearing during the summer so that they could strike down
the statute as quickly as possible.
Justice Kennedy, in his opinion for the 54 majority, tried to explain why that
was necessary. It would have been possible, he conceded, to interpret the
McCain-Feingold Acts prohibition of corporate broadcast, cable, or satellite
electioneering that is publicly distributed as not applying to video-ondemand TV. But he declined this strategy because transmission technology
could be expected to change, so that the Court would be required to revisit the
issue time and time again. He did not explain why the Court could not have
drafted a general principle interpreting the statute to guide future decisions as

technology develops, as it has in so many other cases. For example, the Courts
doctrine of reasonable expectation of privacy is designed to adapt to
evolving technology of surveillance and spying.
The conservative justices also had to overrule two of the Courts prior
decisionsits 1990 Austin and 2003 McConnelldecisions. In his Senate
hearings, Roberts declared his great respect for judicial precedent: he said that
just because he thought that an earlier Court decision had been wrongly
decided or poorly argued would be no reason to overrule it. It would have to
have proved unworkable or its basis in principle would have to have been
eroded by other intervening decisions. Kennedy offered no evidence that
restrictions on corporate electioneering had proved unworkable, which is not
surprising because such restrictions had been in place since 1907.
Instead he argued that the two decisions were themselves inconsistent with
other precedents. But as Justice John Paul Stevens pointed out in his long and
impressive dissenting opinion, Kennedy was able to cite only one past decision
actually to that point: the Courts 1978 Bellotti decision, in which it in fact
denied what Kennedy takes it to have held. Our consideration of a
corporations right to speak on issues of general public interest, the Court
stated in that case, implies no comparable right in the quite different context
of participation in a political campaign for election to public office. Kennedy
disregarded that clear statement because, he said, it occurred in a single
footnote. But that is a natural place for a clarification; and Kennedys
suggested distinction between text and note is entirely novel. Some of the
Courts footnotes have proved much more important than the decisions to
which they were attached.
The main theoretical flaw in Kennedys opinion is different, however. The
opinion announces and perpetuates a shallow, simplistic understanding of the
First Amendment, one that actually undermines one of the most basic purposes
of free speech, which is to protect democracy. The nerve of his argument
that corporations must be treated like real people under the First
Amendmentis in my view preposterous. Corporations are legal fictions.
They have no opinions of their own to contribute and no rights to participate
with equal voice or vote in politics.
Kennedys opinion left Americans very little room to protect themselves
against this further degradation of their democracy. But it did leave some. He
acknowledged that the ruling does not prevent Congress from requiring

reasonable disclosures and disclaimers in corporate advertising. I believe


Congress should require a prominent statement in every such ad disclosing any
corporate sponsors and declaring that their support represents the opinion of
the corporations officers, who have a duty to promote the corporations own
interests, and not necessarily the opinion of any of their shareholders who are
actually paying for the ad.
I hope to discuss this and other suggestions for legislationas well as the poor
quality of the arguments offered by Justice Kennedy, and the potential
consequences of the decisionin more detail in a future issue of The New York
Review.
January 28, 2010

The Devastating Decision: An Exchange


Floyd Abrams, reply by Ronald Dworkin

APRIL 29, 2010 ISSUE

To the Editors:
It is distressing to see that so subtle and sophisticated an analyst of the Supreme
Court as Ronald Dworkin has succumbed to the all too infectious disease of
impugning the motives of those with whom he differs [The Devastating
Decision, NYR, February 25].
Dworkin vigorously differs with the Supreme Courts ruling in the Citizens
United case. Not content to rely on his arguments on the merits, he offers two
theories to explain how the majority of the Court reached its decision. One
possibility, he suggests, and a supposedly generous one at that, is that the
opinion reflects the majoritys instinctive favoritism of corporate interests;
the other is that the opinion was drafted to favor the interests of the Republican
Party. Dworkin does not entertain the possibility that the jurists reached their
ruling for the reasons, rooted in the First Amendment, that they expressed.
This is not only unworthy criticism but omits a long list of others, whose views
were generally far from the Courts current conservative majority, who agreed
with them on this issue. One would hardly suspect from Dworkins accusations

that President Harry S. Truman had vetoed the very section of the Taft-Hartley
law in 1947 that first banned corporate and union independent expenditures
during election campaigns on the ground that the bill posed a dangerous
intrusion on free speech.
One would not imagine that liberal Justices Rutledge, Black, Douglas, and
Murphynot exactly the Courts greatest defenders of corporate interests
could have concluded in 1948 that the statute was unconstitutional because any
undue influence obtained as a result of those expenditures was outweighed
by the loss for democratic processes resulting from the restrictions upon full
and free public discussion. And Dworkin hardly alerts the reader to the fact
that nine years later, Justice Douglas, joined by Chief Justice Warren and
Justice Black, again urged that the ban was unconstitutional, observing that the
argument that some speakers were too powerful could not serve as a
justification for withholding First Amendment rights from any grouplabor
or corporate.
Today, the more conservative members of this Court hold similar views to the
more liberal jurists of a generation ago. That does not make them right,
although I think they are. It does counsel caution on the part of those who differ
with them from assuming that they can simply dismiss their arguments by
attacking their supposed preconceptions or motives.
Floyd Abrams
Cahill Gordon & Reindel LLP New York City

Ronald Dworkin replies:

I agree with Floyd Abrams that except in extreme cases critics of a Supreme
Court opinion should focus on the legal arguments the justices offer, not their
motives. But the Citizens United case, in which the five conservative justices
ensured that big corporations can spend unlimited funds influencing federal
elections, does seem an extreme case.
First, the reasoning the majority offered is, in my opinion, so poor as to suggest
some motive other than a desire to reach the right legal result. Constitutional
lawyers have offered a variety of theories of the point of the First Amendment
but absolutely none of them would justify the majoritys result. (I will defend
that claim in a future issue of the Review.)

Second, two of the justices in the majorityChief Justice John Roberts and
Justice Samuel Alitohad recently, in confirmation hearings, assured senators
of their respect for established judicial precedent. Yet in this case they
explicitly overruled both long-standing and recent Supreme Court decisions to
reach their desired result.
Third, the conservative justices had recently rejected the expansive view of the
First Amendments protection that they adopted in this case.
In Morse v. Frederick, they condoned the punishment of a student who, on a
public street, displayed a banner with an ambiguous but at least potentially
political message. Roberts, writing for the conservatives, said that the message
might also be interpreted as advocating illegal drug use and held that the
ambiguity should be resolved against First Amendment protection. (In another
recent case, the same justices had upheld the right of an anti-abortion group to
broadcast a political message on the opposite assumption: that ambiguities
should be resolved in favor of free speech.) We must also remember that the
three conservatives who were then on the CourtJustices Kennedy, Scalia,
and Thomasjoined the infamous Bush v. Gore decision that made George
W. Bush president. Perhaps Abrams would agree with my judgment that that,
too, was a politically inspired decision.
The Taft-Hartley Act is not apposite. No medium was available in 1947 that,
like television today, would allow rich corporations to drown elections in
money. In any case, the Taft-Hartley Acts prohibitions were global
President Harry Truman, in his veto message, said that the act might even
prevent the League of Women Voterswhich is incorporatedfrom using its
funds to inform its members about the record of a political candidate. The
McCain-Feingold Act that the five conservatives declared unconstitutional
banned only electioneering on television and only for sixty days before an
election.
Floyd Abrams has had a distinguished career protecting an invaluable
constitutional right. But we must take care not to convert the First Amendment
from a matter of principle to a pointless mantra that subverts rather than
sustains democracy.