SCOTUS: Citzens United To Be Re-Argued Today
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The Citizens United case will be re-argued today before SCOTUS. As Robert Barnes put it, this is yet another test of stare decisis in a period where that hallowed doctrine has been repeatedly tested since Justice Roberts took the helm.
And, more precisely, it "raises new ones about the boldness of a court that has moved to the right with the addition of Roberts and Justice Samuel A. Alito Jr."
The case itself is fascinating on a theoretical level, pitting individual rights, free speech and corporate definitions against one another. When you begin to mix in the real world implications of potential decision on this?
It gets even more interesting:
There are two other layers of disagreement in that background. One is over whether it makes constitutional sense to treat the spending of money as “speech,” and the spending of money on election campaigns as “political speech.” But that is a disagreement outside the Court; it is clear that the Court regards such spending to be speech that has at least some protection under the First Amendment. The Citizens United case may determine how much.
And the other layer of disagreement is whether corporations are entitled to some of the same protection, under the Constitution, as real people: in other words, should they be treated as “persons” who actually have constitutional rights? Once again, that appears not to be open to doubt within the Court. The origins of the notion that corporations are “persons” with constitutional rights are somewhat obscure (often traced, perhaps erroneously, to an 1886 Supreme Court decision, in Santa Clara County v. Union Pacific Railroad), but the Court does not question that they are persons in a legal sense. The coming decision in Citizens United will accept that as a premise for whatever rights corporations are found to have as political financiers.
Doug Kendall of CAC penned an op-ed for the LATimes on why there ought to be some debate:
The line between corporations and individuals when it comes to constitutional protections is as old as the United States. The framers wrote the Constitution to protect citizens and the people and never once used the word "corporations."
Early Supreme Court rulings embraced this distinction, holding that the legal rights of a corporation derive from its corporate charter, not the Constitution. . . .
The court’s ruling in Austin, in other words, is fully consistent with the Constitution’s text and history. If conservative justices on the Supreme Court overrule Austin, they will be guilty not only of unleashing corporate influence on elections — in blatant disregard of the will of Congress and of the American people — but of violating their own purported allegiance to upholding our founding document.
The Austin case is Austin v. Michigan Chamber of Commerce, a seminal case which prohibited corporate funds from being directly used to support state candidates.
As an interesting historical note, Justices Kennedy and Scalia joined the dissent against Thurgood Marshall’s majority opinion in Austin. You have to wonder where Kennedy’s leaning at this point, don’t you?
Heather Gerken, writing at Balkinization, detailed the political pressure points oozing out around the carefully crafted legal brinksmanship:
While the First Amendment issues at stake in Citizens United are technically questions of law (something that one could imagine resolving after additional briefing), they turn on complicated questions of fact. It’s not just that the regulatory scheme here is dense and intricate. The whole system is dense and intricate. Decisions made about one form of spending can have a powerful ripple effect. Even seemingly minor changes can affect how parties work, even how politics work. And the Court doesn’t seem to be contemplating a minor change. Overruling Austin would blow a sizeable hole in the regulatory scheme. . . .
You might think that facts shouldn’t matter here. Either the restrictions on corporate spending are constitutional, or they aren’t. Damn the torpedoes, full steam ahead. But that’s not how campaign finance doctrine works; it’s not even how the First Amendment works. Context matters. That’s why the Court spends time thinking about whether, say, newspapers are different from television stations. That’s why the First Amendment applies differently to schools than it does to the public square.
What is true of constitutional law generally is certainly true of the domain of politics. Elections are strange constitutional hybrids; they involve activities at the core of the First Amendment’s protections and yet are pervasively regulated by the state. As a result, election law has always been exceptional, prompting scholars (PDF) to insist that constitutional law simply can’t be applied wholesale to election law.
Daphne has even more at the Washington Independent. SCOTUSWiki has helpfully posted all the briefs filed in the case, as well as prior argument information.
The Court has issued a schedule for the arguments as follows:
– Ted Olson receives 30 minutes to argue on behalf of appellant, Citizens United.
— Floyd Abrams will then have 10 minutes to argue on behalf of Sen. Mitch McConnell, as amicus curae in support of the appellant.
— Solicitor General Elena Kagan will then have 30 minutes to present arguments on behalf of the government’s position on behalf of the Federal Election Commission
— Then Seth Waxman will present supporting arguments on behalf of John McCain and others through amicus curae support of McCain-Feingold and the FEC.
Lyle at SCOTUSblog reports that the Court intends to expedite release of the audio of these arguments shortly following the proceedings. Should be an interesting day, to say the least.
‘morning, Redd…
don’t the corporations have all the rights anyway?
;-)