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The Highlight Reel from Justice Stevens’ <em>Citizens United</em> Dissent

January 21, 2010

by Xan White, Research & Special Projects Associate, Constitutional Accountability Center

There is already a vast amount of commentary on today’s revolutionary—and not in a good way—campaign finance ruling in Citizens United; here’s our statement on the case, and we will post our own analysis of the decision shortly.

For the moment we would like to highlight some of the best quotes from Justice Stevens’ remarkably powerful 90-page dissent.  Looking for classic Robertsian “judicial restraint”?  You won’t find it in the majority opinion or in the Chief Justice’s concurrence.  Principled originalism, a la Scalia and Thomas? Again, you won’t find it in the majority opinion that the self-professed “originalists” joined, but instead in Stevens’ dissent, which offers a tremendous quantity of evidence showing that American legislators since the Founding have regulated undue corporate influence on politics without running afoul of the First Amendment. The entire opinion is worth a read, but for those who can’t digest all 90 pages this afternoon, here are a few key highlights after the jump:

The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case. (2)

Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office…[t]he financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. (2)

Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907…The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce. (2-3, internal cite omitted)

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. (4)

Our colleagues’ suggestion that ‘we are asked to reconsider Austin and, in effect, McConnell,’ would be more accurate if rephrased to state that ‘we have asked ourselves’ to reconsider those cases. (4, internal cite omitted)

Essentially, five 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. (6)

[T]here were principled, narrower paths that a Court that was serious about judicial restraint could have taken. (16)

The only relevant thing that has changed since Austin and McConnell is the composition of this Court. (23)

It is likewise nonsense to suggest that the FEC’s ‘business is to censor’…the majority’s characterization of the FEC is deeply disconcerting. (27, n.39)

Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech. (33)

[I]n light of the Court’s effort to cast itself as the guardian of ancient values, it pays to remember that nothing in our constitutional history dictates today’s outcome. To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is. (41)

It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established. (76)

All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, ‘that there is no such thing as too much speech’…[i]n the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process. (83, internal citations omitted)

The marketplace of ideas is not actually a place where items—or laws—are meant to be bought and sold[.] (85)

Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today. (85-86)

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. (90)