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Citizens United and Conservative Judicial Activism

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Citizens United and Conservative Judicial Activism University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2012 Citizens United and Conservative Judicial Activism Geoffrey R. Stone Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Geoffrey R. Stone, "Citizens United and Conservative Judicial Activism," 2012 University of Illinois Law Review 485 (2012). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CITIZENS UNITED AND CONSERVATIVE JUDICIAL ACTIVISMt Geoffrey R. Stone* This Article analyzes the recent trend of conservative judicial ac- tivism in the Supreme Court and searches for a principled reason to explain it. The conservative majority has struck down several laws in recent years, culminating in its invalidationof an importantprovision of the Bipartisan Campaign Reform Act of 2002 in Citizens United v. Federal Election Commission. While judicial restraint and originalism are currently seen as conservative principles, neitherprin- ciple explains these decisions. The author argues that no principle can explain the results of these cases-rather,they can only be explained by the Justices' per- sonal views and policy preferences. The author compares the con- servative majority's pattern to that of the Warren Court, which largely invalidated laws only when footnote four in United States v. Carolene Products Co. would dictate that the Court should. Thus, neither unrestrainedjudicial activism nor total judicial restraint is ap- propriate. Instead, the author argues that a selective judicial activism guided by footnote four is the best approach. The author then con- cludes that the conservative majority is troubling because it is infusing its personalpolicy preferences into its opinions while at the same time convincing the public that it is acting in a principledmanner. The Supreme Court's 2010 decision in Citizens United v. Federal Election Commission' provides an interesting entry point for a discussion of conservative theories of constitutional interpretation. In Citizens United, the Court, in a five-to-four decision, held unconstitutional a key 2 provision of the Bipartisan Campaign Reform Act of 2002 (BCRA). The specific provision the Court invalidated limited the amount of mon- t This Article was originally presented on March 9, 2011, as the second 2010-2011 lecture of the David C. Baum Memorial Lectures on Civil Rights and Civil Liberties at the University of Illinois College of Law. * Edward H. Levi Distinguished Service Professor of Law, The University of Chicago. 1. 130 S. Ct. 876 (2010). 2. Pub. L. No. 107-155,116 Stat. 81 (2002) (containing the entirety of BCRA). HeinOnline -- 2012 U. Ill. L. Rev. 485 2012 UNIVERSITY OF ILLINOIS LAW REVIEW (Vol. 2012 ey that corporations could spend in certain circumstances to support or oppose the election of named candidates for federal office.' The decision raised fundamental questions about the nature and legitimacy of con- servative judicial activism. I. CITIZENS UNITED V. FEDERAL ELECTION COMMISSION To understand Citizens United, it is first necessary to establish the constitutional context of the decision. In 1976, in Buckley v. Valeo,4 the Supreme Court struck down several provisions of the Federal Election Campaign Act of 1971.1 In a key part of the Buckley decision, the Court held that the government cannot constitutionally limit the amount indi- viduals can spend to support or oppose the election of political candi- dates. The Court reasoned that because expenditure limitations "limit political expression 'at the core of our electoral process and of the First Amendment freedoms,"' they cannot withstand First Amendment scru- 6 tiny. The question later arose whether corporations have the same First Amendment rights as individuals to spend unlimited amounts of money in the electoral process. In 1990, the Supreme Court held in Austin v. Michigan State Chamber of Commerce7 that corporations do not have the same right in this respect as individuals. In a six-to-three decision, the Court upheld a Michigan statute that limited the amount that corpora- tions could spend to support or oppose the election of candidates for state office.8 The Court explained that "the unique legal and economic characteristics of corporations" -such as "limited liability, perpetual life, and favorable treatment of the accumulation and distribution of as- sets"-enable corporations "to use 'resources amassed in the economic marketplace' to obtain 'an unfair advantage in the political market- place."' 9 Noting that the Act was designed to deal with "the corrosive and distorting effects of immense aggregations of wealth that are accu- mulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas," the Court concluded that "the State has articulated a sufficiently compel- ling rationale to support its restriction on independent expenditures by corporations. "10 3. 2 U.S.C. § 441b (2006). The Act also limited labor unions, but for the sake of simplicity I will refer only to corporations. 4. 424 U.S. 1 (1976) (per curiam). 5. Id. at 58 (invalidating 18 U.S.C. §§ 608(a), (c), (e)(1)). 6. Id. at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)). 7. 494 U.S. 652 (1990). 8. Id. at 659-60. 9. Id. at 658-59 (quoting Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 257 (1986)). 10. Id. at 660. HeinOnline -- 2012 U. Ill. L. Rev. 486 2012 No. 2] CONSERVATIVE JUDICIAL ACTIVISM The Court adhered to this view for the next twenty years. In 2003, for example, in McConnell v. Federal Election Commission," the Court upheld the same provision of the BCRA that it later invalidated in Citi- zens United. In McConnell, in a five-to-four decision, the Court followed Austin and held that the provision of the 2002 legislation that limited the amount that corporations could spend in the political process did not vio- late the First Amendment.12 The Court reaffirmed that government's "power to prohibit corporations.., from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates ...has been firmly embedded in our law."' 3 In the seven years between McConnell and Citizens United, it be- came clear that the positions of the Justices on this question were fixed in stone. Beginning with Austin, Justices Scalia, Kennedy, and Thomas voted consistently, in dissent, to protect what they saw as the First Amendment rights of corporations, without regard to precedent, and af- ter joining the Court in 2005 and 2006, respectively, Chief Justice Rob- erts and Justice Alito quickly made clear that they too were in that camp.' 4 As Lillian BeVier astutely observed at the time: [D]ebate on these issues has reached an impasse.... [T]he chasm that separates the Justices from one another appears unbridgea- ble.... There would seem to be little if anything that could be said and little if any evidence that could be marshaled, by either side, which would stand much of a chance of persuading those on the other to reconsider their positions. 5 Sure enough, in Citizens United, the Court, in a five-to-four deci- sion, overruled Austin and McConnell and held that corporations, like individuals, have a First Amendment right to spend unlimited funds in order to elect or defeat particular political candidates. 6 Predictably, the five Justices in the majority were Roberts, Scalia, Kennedy, Thomas, and Alito.17 The only "relevant" change in the seven years since McConnell was that Justice O'Connor (who had voted with the majority in McConnell) had been replaced by Justice Alito. In short, the substitu- tion of Justice Alito for Justice O'Connor switched the majority on the issue. 8 11. 540 U.S. 93 (2003). 12. Id. at 204. 13. Id. at 203. 14. See, e.g., Fed. Election Comm'n v. Wis. Right to Life, 551 U.S. 449 (2007). 15. Lillian R. BeVier, Full of Surprises-and More to Come: Randall v. Sorrell, the First Amendment, and Campaign Finance Regulation, 2006 Sup. CT.REV. 173, 195-96. 16. Citizens United v. Fed. Election Comm'n, 130 S.Ct. 876, 886 (2010). 17. Id. 18. Justice Roberts replaced Chief Justice Rehnquist, but because Justice Rehnquist had dis- sented in McConnell, this did not affect the vote in Citizens United. See id. (Roberts, C.J., Scalia, Ken- nedy, Thomas, Alito, JJ., majority opinion); McConnell, 540 U.S. at 114, 350 (Rehnquist, C.J., Scalia, Kennedy, Thomas, JJ., dissenting). HeinOnline -- 2012 U. Ill. L. Rev. 487 2012 UNIVERSITY OF ILLINOIS LAW REVIEW (Vol. 2012 Justice Kennedy, who wrote the opinion of the Court in Citizens United, reiterated the arguments of the dissenters in the earlier cases, de- claring, for example, that "[i]f the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citi- zens, for simply engaging in political speech," 19 that even though corpora- tions are granted special powers and prerogatives to enable them to func- tion efficiently as economic entities, "'[i]t is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights, '' 20 that corporations should not "be treated dif- ferently under the First Amendment simply because [they] are not 'natu- ral persons,""'2 and that when the government seeks "to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought."22 Such "thought control," Justice Kennedy concluded, is "unlawful," because2 3 the "First Amendment confirms the freedom to think for ourselves." II.
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