Citizens United and the 2010 Mid-term Election

With the 2010 mid-term election in the rear view mirror, the impact of Citizens United can now be practically assessed. For those that spent any time watching television in October 2010, the impact of Citizens United was on full display during this election advertising cycle. 2010 saw a new record set on the amount of money spent on election advertising and electioneering, with some estimates coming in at more than $3 billion being spent, much of it on television spots. Some argue that the ads this election cycle were more vicious than ever before. Without question, they were more plentiful. Of course, Citizens United is the U.S. Supreme Court decision that allows unfettered (and in some cases anonymous) contributions from corporations to specific political and judicial candidates.

A couple of important points to consider:

First, when judges are elected, particularly in partisan contested elections, the potential for nefarious outcomes is elevated. To this point, see this Washington Post editorial entitled "Putting a Halt to Judicial Elections." Further, I have recently dropped an essay with the Iowa Law Review, where i discuss recent empirical evidence that finds that judges that are elected in partisan contests are significantly more likely to find for corporate defendants and interests than are those judges that are appointed. The essay is entitled: "Procuring Justice: Citizens United, Caperton, and Partisan Judicial Elections" and can be accessed at the Iowa Law Review Bulletin.

Second, much of the corporate electioneering is being steered into state local elections by prominent out-of-state groups and organizations, that are crypticly named "Americans for Safety and Strength" or "Americans for Fiscal Responsibility," etc. These organizations provide no ideological affiliation, but do provide cover for many corporate contributions that remain undiscoverable in many instances. Professor Atiba Ellis hosted a Citizens United conference at the West Virginia University College of Law, wherein he and law professors from the University of Akron discussed the impact of Citizens United on this 2010 election cycle.

Citizens United, as described many times in this blogspace, enables an atmosphere of diabolical electioneering, and we have just now begun to see its impacts.

Revisiting Citizens United

When the United States Supreme Court decided Citizens United v. Federal Election Commission earlier this year, many commentators, including several on the Corporate Justice Blog, predicted that the decision would have a nefarious impact on future elections. Recall, that Citizens United essentially held that United States corporations are entitled to free speech rights in electioneering contributions and that Congressional prohibitions that restricted the ability of corporations to finance particular candidates in contested partisan elections were unconstitutional. The Supreme Court essentially freed corporations and unions to make unfettered election contributions to specific candidates in American elections. Now that the 2010 mid-term Congressional election period is in full swing, has Citizens United had the predicted nefarious impact? The answer to that question lies in one's perspective. Without question, corporate campaign contributions have increased in 2010 to levels never before seen.

Recent empirical analysis confirms what many feared: Citizens United has “liberated” corporations from most of the campaign finance restrictions imposed by the McCain-Feingold law which were struck down as unconstitutional. While 2008 was a record-breaking election year in terms of donations, now in 2010, due in large part to Citizens United, corporate political spending has increased by 10-15%, and this despite a relentlessly depressed economy. Compared to the last mid-term election in 2006, campaign contributions in 2010 are predicted to increase by more than 35%. “Super PAC’s” are taking in money like never before, including huge corporate contributions into and large negative advertising buys by Karl Rove’s American Crossroads group. More than anything else, Citizens United will likely increase exponentially the money spent on negative election advertising.

U.S. Supreme Court Justice John Paul Stevens Announces Retirement: Will The Court's Liberal Wing Be Silenced?

Yesterday, Supreme Court Justice John Paul Stevens announced that he would retire from the Surpeme Court at the end of the Court's current term this summer. Stevens, who will soon turn 90, was appointed by Republican President Gerald Ford. Stevens will step down as the second-oldest justice to ever serve on the Supreme Court, slightly behind Justice Oliver Wendell Holmes, who retired in 1932 at age 90 years, and 10 months. Depending on the date of his actual retirement Justice Stevens quite possibly could end up being the second longest serving justice behind Justice William O. Douglas.

During his tenure on the Supreme Court, Stevens "evolved from a maverick who would often write solitary opinions to a coalition builder and leader of the court's liberal wing." Richard Fallon, a Harvard Law School constitutional law professor made the following observation about Stevens: "There really were two Justice Stevenses...[t]he first Justice Stevens was a somewhat iconoclastic moderate. The second Justice Stevens was the great liberal voice on the Supreme Court for the past two decades." Justice Stevens stance shifted from a moderate stance to a more liberal stance in the early 1990's upon the retirement of liberal Justices William Brennan and Thurgood Marshall. Professor Fallon noted: "It was as if there was a void on the court...[t]here was no longer a great liberal voice, and Justice Stevens moved to fill that void."

Let's examine some of Justice Stevenses notable majority opinions and dissents:

• In 1978 Justice Stevens authored the court's opinion allowing the Federal Communications Commission to punish broadcasters for airing offensive language. Comedian George Carlin's monologue about the seven "filthy words" was at the center of this decision.

• In the 1989 flag burning case, where the court ruled that flag burning was protected free-speech, Justice Stevens dissented arguing that desecration of the flag was not protected speech.

• Justice Stevens wrote the 1997 opinion that allowed Paula Jones to continue her sexual harassment suit against President Bill Clinton.

• In 2000, Justice Stevens dissented in the Supreme Court's decision to halt the ballot recount in Florida, which arguably led to President George W. Bush's election over opponent Al Gore.

• In 2002, Justice Stevens authored the opinion in a 6-3 decision that prohibited the execution of mentally retarded killers.

• In 2005, Justice Stevens joined in a 5-4 decision banning the execution of murderers who were under the age of 18 at the time of commission of their crime.

• In 2004 and 2006, Justice Stevens wrote two (2) opinions bolstering the rights of Guantanamo Bay detainees. The latter ruling barred military tribunals.

Older age did not slow Justice Stevens down. Most recently, in Citizens United v. Federal Election Commission, the recent decision paving the way for corporate spending in elections, Justice Stevens issued a passionate 90-page dissent. This momumental decision was discussed recently on this blog by my colleague Steve Ramirez. Citizens United struck down decades-old precedent banning corporate money from political campaigns. In his dissent, Justice Stevens wrote: "While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics..." Additionally, Justice Stevens noted: "The difference between selling a vote and selling access is a matter of degree, not kind...And selling access is not qualitatively different from giving special preference to those who spent money on one's behalf." Only time will tell whether Justice Stevenses admonition that treating corporate speech the same as that of human beings holds validity.

With the announcement of Justice Stevenses retirement, the ball is now squarely in President Obama's court, no basketball pun intended. Justice Stevenses retirement reminds us that presidential elections are extremely important. By selecting Supreme Court Justices, the President can have an impact on society far beyond their years in office. Indeed, the judicial selection process can have generational impact.

If I could use this blog as my open letter and suggestion to the Obama Administration I would offer up but two (2) meager suggestions. I truly hope that President Obama takes this opportunity to appoint a moderate to liberal leaning associate justice. I think in recent years the Supreme Court majority has moved in a decidedly conservative direction. Often, judicial decisions reflect the overriding needs of society when there is a level of ideological balance and perspective. Hopefully, with balance between conservative, moderate, and liberal viewpoints judges must compromise. Ideally, there is no tyranny of the majority or tyranny of the minority. In order to get things accomplished, judicially and policitally, judges should decide to roll-up their sleeves and work together to reach the best judicial outcomes for society.

As a final matter, I hope that President Obama seeks a measure of diversity in his selection. Let me be clear, when I say diversity, I mean diversity in a broad sense. What one thing do all current Supreme Court Justices hold in common? If you look at the composition of the current Supreme Court, all the current judges are former federal appellate court judges. In the past, Supreme Court justices entered the bench from a diverse number of career paths. Former presidents, senators, politicians, administration officials, distinguished lawyers, law professors, business people, and others populated the bench. Perhaps the time has arrived to broaden the Supreme Court's perspective. As I've grown older, I've keenly come to realize that life is all about the choices that one makes. President Obama I urge you to choose wisely.

I leave you with several questions. Do you think the Supreme Court's liberal wing will be silenced by Justice Stevenses departure? What qualities do you want to see in the next Supreme Court Justice? If you were President Obama, who would you pick? Undoubtedly, it will be very interesting to follow the buzz in the coming weeks and months concerning President Obama's selection.