Stanford Progressive

Judicial Absurdism and Conservatism

By Ross Raffin, published March, 2010

Every Constitutional lawyer knows there are some very strange arguments lodged in the holdings of the Supreme Court. Sometimes, however, there are court arguments which are so absurd as to only be explicable by senility or hypocrisy. These arguments span the political spectrum from liberal to conservative court opinions. On January 21st, the Roberts Court gave us our latest dose of judicial absurdism, and the Republicans applauded. The conservative side of the court, Anthony Kennedy, John Roberts, Anton Scalia, Clarence Thomas, and Samuel Alito, defied their self-proclaimed status as champions of stare decisis, the keeping of court precedent. This hypocrisy is buttressed with ridiculous arguments bordering on the inane. While the impact of this decision on campaign finance is questionable, the results are clear, either ideology is trumping principle and/or unreasonableness is trumping intellect.

Citizens United v. Federal Election Commission started when a conservative non-profit organization, Citizens United, tried to televise an “on-demand” film critical of Hillary Clinton using general treasury funds from corporations. Using corporate treasury funds for this purpose conflicted with part of the Bipartisan Campaign Reform Act (McCaign-Feingold Act) and the Federal Election Campaign Act. The sections in question only regulated election-related communication if it is was paid for by the general treasury of a non-media corporation expressly advocating the election or defeat of specific candidate within 60 days of a general election and 30 days before a primary. The majority called this a nearly draconian “outright ban on free speech.” Citizens United could easily have paid for the ad through its Political Action Committee (PAC), a private group which finances the election of candidates. Instead of forcing minority shareholders to donate general treasury funds from a corporation to a candidate, a PAC allows the pooling of donations voluntarily from shareholders and executives. Instead of this common route, Citizens United gave the Supreme Court an opening to nullify a century of regulation on independent expenditures.

Corporations are still banned from donating directly to candidates, but now they can run advertisements in favor of the candidate as long as there is no previous collaboration between the candidate and corporation, an independent expenditure. The majority argues that with independent expenditure there is no danger of quid pro quo corruption, exchanging money for votes, and thus no government interest to limit first amendment rights. This targets a recent precedent, Austin v. Michigan Chamber of Commerce (1990), which ruled that independent expenditures by the general treasury of a corporation could be prohibited on the grounds of “dimishishing corrosive effects of wealth aggregation.” As Stevens noted in his dissent, that ruling is not about evening the playing field, it is about confronting the “distinctive corrupting potential of corporate electoral advocacy by general treasury dollars.”

The argument that independent expenditures do not involve quid pro quo corruption ignores the empirical evidence behind the McCain-Feingold Act, over 100,000 pages of Congressional records. Among other things, these recordings document ex-Senators and lobbyists proudly explaining how groups making independent expenditures simply call the candidate immediately after the ad aired. Independent expenditures are sometimes better than direct contributions, since they allow for attack ads from a group not connected to either candidate. However, even with the restrictions of McCain-Feingold, corporations can still fund issue-related advertisements, they just cannot make an advertisement which can only be interpreted as advocating the election of a candidate.

Instead of choosing among several narrow remedies recommended in Justice Steven’s dissent, the conservative majority opinion, written by Justice Kennedy, decided to overturn dozens of court cases and statutes over the past 100 years because they did not agree with the ruling of Austin v. Michigan Chamber of Commerce. The court has said that violating stare decisis, a practice usually derided as “judicial activism,” should only be applied in special cases. In Planned Parenthood v. Casey (1992), the conservative justices sternly lectured that decision to overrule should rest on some special reason over and above the belief that a previous case was wrongly decided.” Yet the majority’s entire stance is that Austin “was not well reasoned.”

Stare decisis is especially important when overruling a court decision leads to overruling the will of legislators and the public. Justice Scalia attacked overturning anti-sodomy laws for violating a single court precedent and statute. Yet, as Justice Stephen Breyer’s dissent notes, Citizens United v. FEC overturns nearly a dozen court decisions and congressional statues including the Taft-Hartley Act (1947), FECA Act (1972), and Bipartisan Campaign Act (2002). The Senate Report for the oldest related legislation, the Tillman Act (1907), went as far as to say the “evils of use of [corporate] money in connection with political elections is so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose.”

Here is where it goes from “hypocritical” to “strange.” The majority argues that the first amendment applies regardless of identity, thus giving corporations a right to free speech and consequently independent expenditures. This counts as strange since first amendment rights obviously differ by identity as demonstrated by the rights of students, prisoners, members of the armed services, government officials, and foreigners. This reasoning also creates a first amendment right for foreign corporations with domestic subsidiaries. Even more worrying, if identity does not effect first amendment rights, how could the court ban direct donations from corporate funds? Although court precedent has established that corporations possess some first amendment rights, precedent also establishes that the special characteristics of coporate structure require regulation.

The majority then argues that a logical extension of McCain-Feingold is limiting independent expenditures for a media corporations. This seems to ignores the actual wording of the statute which definitively regulates only “non-media corporations.” The majority wades deeper into incohrence as it argues that Austin and other precedents would allow for the FEC to ban the showing of Mr. Smith Goes to Washington. This statement alone qualifies the case for judicial absurdism.

In a concurring opinion, Scalia shines a ray of reasonableness. He gives a plausible alternative to Justice Steven’s interpretation of what framers thought about corporations. However, his main conclusion is just that the views of the founders are too unclear to use as justification. This weakens Justice Steven’s argument about the founder’s intent but does nothing to address the violations of stare decisis. In another concurring opinion, Justice Thomas, in his usual modus operandi, attempts to bring America back to the constitutional stone age by eliminating even disclosure requirements for corporations. All in all, what is to be expected in a case of judicial absurdism.

The court holding began with a majority opinion proudly declaring a wish to overturn a century of American law because it thought the reasoning in one case was wrong. It ended with Justice Thomas further embarassing court conservatives by eliminating bedrock principles of campaign finance. Republicans (with the notable exception of John McCain) applauded this decision for good reason. If this ruling helps anyone, it will be Republican Congressmen. Kentucky Senator Mitch McConnell said that “Supreme Court took an important step in the direction of restoring the First Amendment rights.” Granted, this is unsurprising since McConnell lost a Supreme Court case in 2003 due to the parts of McCain-Feingold the Supreme Court gutted. In a honorably calm manner, McCain commented that he was “disappointed by the decision.”

On the other side of the aisle, Congressional Democrats have generated waves of overreaction. Florida Representative Alan Grayson called Citizens the “worst decision since the Dred Scott case” which “leads us all down the road to serfdom.” There is a thread of truth in this, but only in the sense that the Taney court also used Dred Scott to make a broad ruling when a much narrower one was possible. In terms of actual legal implications, the comment is too silly to rebut. Some take simple ignorance to a dramatic level, as demonstrated by Murray Hill Inc, a progressive communications firm. This corporation decided to make a rhetorical point by running in Maryland’s 8th Congressional District as a coprorate candidate since “corporations are people too.”

Contrary to these apocryphal claims, corporations already have many tools to get around McCain-Feingold, so the impact of the decision on elections themselves will not be overwhelming. For instance, corporations can currently evade McCain-Feingold by contributing general treasury funds to 527 organizations which are almost entirely unregulated. Some familiar 527 group from previous elections are Swiftboat Veterans for Truth and

The importance of Citizens United v. FEC comes not from implications about campaign finance but instead from implications about judicial conduct by court conservatives. This act of judicial absurdism further solidifies the tendency of certain conservative justices to ignore logic and precedent in favor of ideology and incoherency. The Congressional Republican’s acceptance of blatant hypocrisy regarding judicial activism reveals their apathy towards constitutional law in favor of electoral benefits. In his State of the Union address, President Obama called out the Supreme Court on their hypocrisy of reversing a “century of law to open the floodgates for special interests –including foreign corporations– to spend without limit in our elections.” While Alito may mouth “not true” all he likes, this does not change the fact that Obama is 100% correct in reference to independent expenditures expressly advocating the election of candidates. Conservatives critizing Obama for questioning the Supreme Court must be entirely unfamiliar with United States history of executive and judicial interactions. Conservatives critizing the content of Obama’s questioning are either ignorant of the facts or proponents of further judicial absurdism.

1 Comment »

  1.  Steward, April 12, 2010 @ 3:05 am

    State interest is an invention of 20th century liberal justices. Clarence Thomas is the only one patriotic enough to want the constitutoin the way the founding fathers wanted. Try looking at “judicial absurdism” in progressives.

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