It’s difficult to look beyond the tumult of current events and ask, “what happened this year that will be remembered ten, twenty, or fifty years from now?” However, there was one 2010 event that, in terms of its long-term impact, loomed above the others, the Citizens United v. FEC Supreme Court Decision.
Writing in the New York Review, law professor Ronald Dworkin explained Citizens United v. FEC: “In the 2008 presidential primary season a small corporation, Citizens United, financed to a minor extent by corporate contributions, tried to broadcast a derogatory movie about Hillary Clinton. The FEC declared the broadcast illegal under the BCRA [Bipartisan Campaign Reform Act]. Citizens United then asked the Supreme Court to declare it exempt from that statute on the ground, among others, that it proposed to broadcast its movie only on a pay-per-view channel.” In an extraordinary example of judicial activism, the Supreme Court conservative majority, led by Chief Justice John Roberts, declared the entire BCRA act unconstitutional.
The Supreme Court hadn’t been the story of the year since the December 12, 2000, Bush v. Gore decision. This paved the way for Bush’s installation as president and his nomination of John Roberts as Chief Justice in September of 2005. Many Supreme Court observers regard Roberts as the judicial equivalent of the “Manchurian Candidate.” New Yorker legal analyst Jeffrey Toobin noted Roberts’ dogmatic conservatism: “In every major case since he became the nation’s seventeenth Chief Justice, Roberts [and his conservative allies] has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”
John Roberts had worked as an attorney for both the Ronald Reagan and George H. W. Bush administrations and, therefore, possible conservative “judicial activism” was a concern of the Democratic Senators who questioned him before confirmation. Roberts denied that he was an activist and appeared to honor the legal tradition of stare decisis, abiding by precedent. Five years later, it’s apparent that Roberts hid his true philosophy.
In the Citizens United decision Roberts aggressively advanced the conservative agenda along three fronts. First, the decision to hear this case was an extraordinary example of judicial activism. Professor Dworkin observed, Citizens United “did not challenge the constitutionality of [BCRA]. But the five conservative justices — Chief Justice Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas — decided on their own initiative, after a rehearing they themselves called for, that they wanted to declare the act unconstitutional anyway.” [Emphasis added] Justice Kennedy, who wrote the majority opinion, explained that the conservative justices called for the rehearing because they had dissented on the most pertinent precedent, McConnell v. FEC, and had continued to complain about it.
Second, the Citizens United decision strengthened the conservative contention that corporations have “personhood” and, therefore, enjoy the same rights as ordinary individuals, including the right of free speech. (For a compelling account of how the bizarre notion that corporations enjoy the same constitutional rights as human beings has evolved, see radio host Thom Hartmann’s book, Unequal Protection.)
Third, the Citizens United decision allowed corporations to spend unlimited funds in political contests. It was this aspect that caused President Obama to observe, during his January 27, 2010, State of the Union Address, “The Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations – -to spend without limit in our elections.” The decision granted corporations more rights than those of human beings.
The 2010 midterm elections demonstrated the lethality of the Citizens United decision. The non-partisan group, Opensecrets.org calculated that, excluding Party Committees, $294 million was spent by outside groups. Conservative outside groups spent twice as much as did Liberal groups. For example, the US Chamber of Commerce, a conservative-leaning outside group, spent $32.8 million, more than the combined total of the two leading Liberal groups: the SEIU ($15.7 million) and the AFSCME ($12.6). (The McClatchey Newspapers reported that the US Chamber, which has foreign corporations as members, expected to spend more than $75 million in all forms of political support.)
Massive spending by outside groups influenced the outcome of the midterm election. In the Pennsylvania Senate race, outside spending was more than $12 million: $5.9 million was spent on ads attacking the Democratic Candidate (Joe Sestak), whereas only $1.9 was spent attacking the Republican (Pat Toomey); Sestak lost. In Illinois, $6.2 million was spent attacking the Democratic candidate (Alex Giannoulias), whereas only $1.5 million was spent attacking the Republican (Mark Kirk); Giannoulias lost. There are many similar examples, including outgoing New York Democratic Congressman John Hall who attributed his defeat to the decision.
We’ve entered a new phase of American history, the Corporatist period where multinational corporations have unbridled political influence. This movement started before the Citizens United decision, but the Roberts’ Supreme Court has accelerated the pace and thereby profoundly weakened our democracy.