‘A republic, madam, if you can keep it’

Part 1 of 2

Such was Ben Franklin’s famous reply, when leaving the Constitutional Convention in Philadelphia, to a well-meaning woman, inquiring what kind of government we would have. Though I normally strain to keep things in perspective, Franklin’s words come to mind when I think how the U.S. Supreme Court recently rejected an opportunity to rethink its disastrous decision in “Citizens United v. Federal Election Commission.”

Presented with the Montana Supreme Court’s ruling upholding the state’s century-old ban on the use of corporate funds to support or oppose candidates in state elections, the justices could have revisited their enormously controversial ruling by listing the Montana case for full briefing and oral argument. Instead, in a 5 to 4 vote (no surprise there), they summarily reversed the holding of the state’s highest court. Justices Ginsberg and Breyer had already voiced their view that the Montana case would “give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, [‘Citizens’] should continue to hold sway,” but to no avail.

In a frustratingly even-tempered dissent, four justices (you know who) disagreed with the reality-defying holding of “Citizens” that “independent expenditures, including those made by corporations, do not give rise to corruption, or the appearance of corruption.” In doing so, again with maddening understatement, they relied upon the dissent by Justice Stevens in “Citizens,” while omitting to mention its power. For Stevens, in his devastating 90-page opinion, point-by-point had dismantled the majority ruling by Anthony Kennedy more completely than any dissent I can recall.

As Anthony Piel made clear in his first-rate column in this paper on June 7, very little originally was at stake in “Citizens United.” The narrow question presented by the plaintiff’s famed lawyer Ted Olson, the victor in “Bush v. Gore,” was one of statutory interpretation: whether “Hillary, the Movie” amounted to an “electioneering communication” within the meaning of the Bipartisan Campaign Reform Act. Decide that, and everyone goes home.

The wealthy nonprofit corporation Citizens United had abandoned at the trial court level its claim that the BCRA, on its face, violated the First Amendment, and did not present the issue for decision by the justices. It was Chief Justice Roberts who listed the case for a second argument, while re-injecting the First Amendment into the fray.

The case had nothing to do with whether a corporation might finance electioneering, but simply concerned how it might do so. Under the BCRA, as Justice Stevens made clear, “it could have used [its PACs] assets to televise and promote ‘Hillary: The Movie’ wherever and whenever it wanted to.” Or the corporation could have spent unrestricted funds from its general treasury to broadcast the film at any time other than 30 days before the primary election.

The parties, then, were battling over a single narrow and discrete issue — whether Citizens United had a right to use the funds in its general corporate treasury (rather than those in its PAC) to pay for broadcasts during that 30-day period. But instead of deciding this reed-slim technical issue, as Justice Stevens so wryly noted, “[F]ive justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” He closed his onslaught with this condemnation: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

President Barack Obama in his 2010 State of the Union Address decried the Court’s reversal of a century of campaign law that would “open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”

The Montana Supreme Court had ingeniously viewed as an invitation to provide proof what many simply saw as Kennedy’s statement of a rule of law: that corporate dollars do not even seem to give rise to political corruption. What happens, the Montana justices asked implicitly, when the record before them abounds with facts demonstrating an ironclad link between corporate expenditures and political corruption?

The Montana court thought the answer plain and ruled accordingly, upholding its state statute prohibiting political expenditures by corporations on behalf of, or opposing, candidates for public office. But now that approach has failed, so Americans are stuck with a decision in “Citizens” that consigns us to wonder what could have motivated the majority — since constitutional scholarship so plainly did not.

Next time, I will review possible solutions to the “Citizens United” debacle.

Charles R. Church is an attorney practicing in Salisbury who for years has studied Guantanamo Bay detention, torture, habeas corpus and related issues.