In yesterday's post, I said first impressions of Supreme Court rulings often create false impressions. A commentary by a nationally syndicated Chicago Tribune columnist is a good example. It spreads two misconceptions. First, that Thursday's decision somehow grants corporations a long-denied ability to speak. And second, that many if not most corporations will not exercise this supposed newfound freedom for fear of alienating customers.
The first misconception shows a profound lack of understanding of both the decision in Citizens United v. FEC as well as practical reality. You need look no further than the national health care debate or recent Wisconsin Supreme Court elections to see how ridiculous it is to suggest that corporations have not had a voice in national or state political affairs. What the court did is give corporations an even louder and more dominant voice. That five out of nine members of our nation's highest court concluded that corporations were not being adequately heard in the marketplace of ideas in this country is truly jawdropping.
The second misconception is based on a terribly naive notion of how corporations will react to the Citizens United decision. It is highly doubtful that the likes of Goldman Sachs or WalMart or Microsoft will sponsor their own campaign ads. But that doesn't mean they will sit on the sidelines. They will send their money to associations like the U.S. Chamber of Commerce, which will do the electioneering for them. Currently, neither federal nor state disclosure laws are sufficient to allow voters to know which corporations will be bankrollling all the election ads. Unless changes are made to those disclosure laws, companies need not worry about angering their customers or even their shareholders.
As I continue to reflect on what will rank right there with the Dred Scott decision as one of the darkest moments in the history of the U.S. Supreme Court, I can't help but wonder if all this is giving any pause to fans of appointed judges who would like to do away with state judicial elections. It will be hard for them to look honestly at this current court and not see how blatantly political it is and how the Citizens United decision was the handiwork of hard-line ideologues who are so obviously tools of wealthy special interests.
Not that we learned anything new Thursday about Chief Justice John Roberts, for example, but he certainly confirmed suspicions that he is a conniving liar who was willing to bear false witness to Congress to secure an appointment for life. After all, Roberts pledged allegiance in his confirmation hearings to the principle of stare decisis, latin for "stand by the decision," meaning courts are bound by previous decisions and what Roberts himself called "settled" law. It is hard to imagine more well-established precedents or more settled laws than those Roberts and his allies just overturned in Citizens United. By this brazen act of judicial hypocrisy, the chief justice further cemented his growing reputation as one of the most radical activists ever to sit on the high court. What will law professors tell their students? How will they teach stare decisis with a straight face?
Anthony Kennedy showed himself to be intellectually double-jointed. He wrote in Caperton v. Massey that huge sums of money spent in election campaigns can violate the Due Process Clause in the Constitution and deny a fair trial to those who face big campaign spenders in court. Then he turned around in Citizens United and wrote this:
"(W)e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."
"The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy."
Kennedy offers no evidence and points to nothing in the case record to support these conclusions. He's just sure.