Two years after Heller, the Roberts Court took on campaign finance regulation in Citizens United. What, if any, were the limits on corporate spending on elections? Citizens United was a tougher case than Heller. It implicated not an ambiguous constitutional provision about guns, but the First Amendment’s resolute protection of expression. If money enabled speech, then the more that corporate spending was regulated, the less speech entered the marketplace. Some liberals who supported the goal of reducing money’s influence on campaigns nonetheless found themselves opposing restrictions on corporations. The spending at issue in Citizens United was by a conservative nonprofit organization to make a “documentary” about Hillary Clinton for use during the 2008 presidential campaign. The country’s leading First Amendment lawyer, Floyd Abrams, said “criminalizing a movie about Hillary Clinton” was “a constitutional desecration.” He argued in the Supreme Court against the government restrictions.
In Citizens United, two great values recognized by the Court—public confidence in the political process and the inviolability of free expression—clashed. But despite their different subject matter, Citizens United and Heller were of a piece: They both involved challenges to well-established statutes enacted by legislators trying to deal with hard questions. As in Heller, the justices in Citizens United chose to override the judgment of the people.
The history of regulating spending in political campaigns dates to colonial times. After 26-year-old George Washington, in his successful 1758 race for the Virginia House of Burgesses, tried to win over voters by serving them “a hogshead and a barrel of punch,” the legislature passed a law to forbid such inducements. Over the course of more than 200 years—but especially during Theodore Roosevelt’s presidency at the turn of the 20th century—Congress tried to curtail possible corruption in campaigns: barring politicians from soliciting civil service workers; requiring disclosure of contributions; and limiting corporations and labor unions in their contributions to (and expenditures on) candidates. But most of the laws were toothless, providing little means of enforcement. And so it remained until the 1970s.
By then, most candidates campaigned through TV, and the need for advertising cash skyrocketed. Money talked louder and longer. After the abuses in the 1972 presidential election and ensuing Watergate scandal, Congress passed stronger reforms and established the modern regulatory structure for campaigns. There were more rules for “political action committees” (PACs), which pooled money that could in turn be used on campaigns. And an independent agency, the Federal Election Commission (FEC), was created to administer the rules. Most important, the new laws set strict limits on contributions.
In 1976, the Supreme Court considered the conflict between these laws and the First Amendment for the first time. The crux of Buckley v. Valeo was that it acknowledged the link between money and speech—that in campaigns the amount of the former determined the extent of the latter. “Virtually every means of communicating ideas in today’s mass society requires the expenditure of money,” the Court said. “Unlimited political expression” that was still “subject to a ceiling on expenditure” was “like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.” The question was which way that observation cut. In the name of free expression, should anybody get to spend any amount on a campaign—or would the absence of regulation lead to moneyed voices drowning out others?
The Court split the difference. For expenditures, it said, the First Amendment allowed candidates themselves to spend overall whatever they wanted. But contributions to individual candidates were a different matter. Because they were only “a general expression of support for the candidate”—rather than the contributor’s actual “communication” of “the underlying basis” for support—limits on contribution were acceptable. So Congress could set a cap on how much someone could contribute to any one federal candidate. In distinguishing between contributions and expenditures, the Court gave Congress latitude to legislate against “the reality or appearance of corruption inherent in a system permitting unlimited financial contributions”—while at the same time accommodating First Amendment interests.
It was hardly an ideal result. Treating contributions and expenditures differently ended up destroying half of the system that Congress had established. But at least it reflected some judicial deference to the other branches. The gaping loophole left by Buckley concerned “issue advocacy.” Buckley said expenditure limits applied only to communications that “in express terms” advocated “the election or defeat” of an “identified” candidate. If an ad didn’t use any of the so-called eight magic words listed in a Buckley footnote—support, defeat, elect and so on—then the ad (or film or whatever) was exempt from campaign finance law. That formalistic distinction is what allowed those unremitting TV spots during campaign season that never quite told the voter whom to vote for. So, a partisan group’s 30-second ad exalting candidate Smith’s love of blueberry pie wasn’t subject to expenditure limits. Nor was a commercial stating candidate Jones behaved like a war criminal. But any sentient viewer understood the respective ads’ take on Smith’s and Jones’s fitness for office.
The funds that poured into issue advocacy came to be called “soft money.” The proliferation of big contributions led Congress to pass the Bipartisan Campaign Reform Act of 2002, popularly known as McCain-Feingold (after its chief Senate sponsors, Republican John McCain and Democrat Russ Feingold). The law had two key parts: It restricted the ability of political parties themselves to receive soft money, and it aimed to close the Buckley issue-advocacy loophole. Now, corporations (and unions) were barred from funding most “electioneering communications”—which were candidate-specific ads broadcast in the 30 days before a primary and in the 60 days before a general election (exactly what would be at issue in Citizens United).
While the law was labeled “bipartisan,” the politics behind it reflected the standard partisan divide over money in politics. Most Republicans, in defense of free markets and constitutional rights for corporations, opposed regulation. Most Democrats, citing the integrity of elections, favored it. The First Amendment aspect presented the quandary. Both liberals and conservatives treasured freedom of expression, though not always consistently. Republicans were happy to take a tough stand on, say, smut, but not the appearance of political corruption. When it came to campaign finance, Democrats were fine with dissociating money from the idea of speech.
The year after McCain-Feingold passed, the Supreme Court in McConnell v. FEC upheld most of its provisions against a First Amendment challenge brought by GOP senator Mitch McConnell. The vote was 5–4, along familiar lines, with Sandra Day O’Connor—the former state legislator—as the swing vote, siding with the liberal bloc. The majority said limits on contributions and spending had only incidental impact on free speech. Moreover, “reams of disquieting” congressional findings had shown the subtle harms of soft money and big money, which not only correlated with electoral victory, but meant preferential access to officeholders. The dissents argued simply that unless corruption was demonstrable—pretty much a quid pro quo bribe—most of the McCain-Feingold reforms were unconstitutional. The majority’s looser definition of corruption “sweeps away all protections for speech that lie in its path,” Anthony Kennedy wrote.
For proponents of vigorous campaign finance restrictions, the halcyon days were few. A mere four years later, in 2007, the Court did a U-turn, and the conservatives prevailed. In FEC v. Wisconsin Right to Life, the justices ruled that the ban on corporate issue ads during election season violated the First Amendment, as long as the ads didn’t explicitly endorse or oppose a candidate. “Where the First Amendment is implicated,” Chief Justice John Roberts wrote, “the tie goes to the speaker, not the censor.” Perhaps, he said, the earlier ruling in McConnell could still be constitutionally rationalized. Maybe “express advocacy” ads and their “functional equivalent” both posed dangers to the political process that Congress was allowed to address. But in Wisconsin RTL, Roberts claimed, any advocacy in the ads was too disconnected from specific candidates. “Enough is enough,” he wrote.
His position was absurd. Created by a pro-life nonprofit, the ads inveighed against senators who were using the filibuster “to block federal judicial nominees” of the pro-life president, George W. Bush. The ads were to run during the blackout period before the 2004 election in which one of those senators, a Democrat, was up for another term. It was entirely clear whom the pro-life ads were opposing—not even close to Roberts’s debatable “tie.” But because the ads didn’t actually mention the Democrat, they weren’t the “functional equivalent” of “express advocacy.” Such was the chief’s justice position.
So, under the First Amendment, the specific ads in the case could not be barred. But there remained the theoretical possibility that barring other ads might still be constitutional. McCain-Feingold lived on, moribund but not buried. Roberts professed to be drawing a line. But as the dissent pointed out, and despite Roberts’s protest to the contrary, there really wasn’t any way to square Wisconsin RTL with McConnell. Scalia, who voted with the chief, called him out for trying to have it both ways. “This faux judicial restraint,” Scalia seethed, “is judicial obfuscation.”
As in McConnell, the vote in Wisconsin RTL was 5–4, except it went the other way. Nothing of substance had happened in the interim. The facts on the ground were the same. Congress hadn’t backed down on its findings about the effects of soft money. All that had changed was the Court’s roster. Though Roberts had succeeded William Rehnquist as chief, it didn’t matter in this case. But Samuel Alito had replaced O’Connor, and that made all the difference. (“Gosh,” O’Connor said the week after Citizens United, “I step away for a couple of years and there’s no telling what’s going to happen.” A year later, she acknowledged, “sadly,” that she would have voted the other way in Citizens United, believing that the Framers in the First Amendment “were talking about the rights of individuals, not corporate entities.”)
Three years after Wisconsin RTL, in 2010, Roberts no longer tried to play the judicial minimalist. In Citizens United, he joined the hard-line conservatives, along with Kennedy, to defang much of campaign finance law and, at least in tenor, transformed American politics.
Citizens United, the conservative nonprofit behind the lawsuit, was part of a rich tradition. Political organizations—left and right—were formed to proselytize, strategize and often demonize. Even the last came with the blessing of the First Amendment, which protected all opinions and most accusations short of libel. It didn’t make for pretty politics or an informed electorate, but it surely beat a system of censorship. Far better that individual citizens, rather than the government, decided what views were worthy. The verdicts of the people were called elections.
Founded in 1988 by followers of Ronald Reagan, Citizens United described its mission as restoring “the founding fathers’ vision of a free nation, guided by the honesty, common sense, and good will of its citizens.” The group liked to do so by going after Bill and Hillary Clinton. In 1992, when he was running for president, Citizens United produced an ad that urged voters to “get to know Bill Clinton.” All they had to do was dial a number, and for $4.95, they could hear a snippet of his taped calls with a lover, Gennifer Flowers. By 2007, when it appeared certain Hillary was going to run for president, Citizens United decided to make a documentary about her. It aspired to be a right-wing “Fahrenheit 9/11,” the 2004 polemic about George W. Bush by liberal filmmaker Michael Moore. Its architect was David Bossie, the head of Citizens United, who had dedicated his career to Clinton-bashing. (Bossie later served as deputy campaign manager for Donald Trump’s presidential run.) “Hillary: The Movie” was the result.
Its cast of politicians, journalists and all-purpose “opinion makers” variously described Hillary as “venal,” “ruthless” and “sneaky,” in addition to “being driven by power” and “steeped in sleaze.” The 90-minute combination of horror show and unintentional parody made it look like a co-production of Alfred Hitchcock and Mel Brooks. Citizens United wanted to distribute “Hillary” in part through video-on-demand on cable. The FEC ruled the movie was an electioneering communication covered by McCain-Feingold. That essentially prevented its broadcast during the 2008 Democratic presidential primaries, chiefly between Hillary Clinton and Barack Obama. Citizens United challenged the FEC’s ruling, and the Supreme Court agreed to hear the case.
Like Brown v. Board of Education and Roe and Bush v. Gore, it was another important appeal that made two trips to the Court. The first, in a March 2009 argument that resulted in no published opinions, didn’t suggest Citizens United would be a big deal. Ted Olson, who had won Bush v. Gore, began by telling the justices that First Amendment freedoms were being “smothered” by McCain-Feingold—“one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state.” But he mostly wanted to argue only that the FEC erred in its specific decision on “Hillary: The Movie.” He said McCain-Feingold addressed “short, punchy” ads and simply wasn’t meant to apply to this kind of documentary. As a result, he said, the First Amendment issue wasn’t paramount.
But the conservative bloc of the Court, given Wisconsin RTL, wanted to go all the way. Citizens United presented the opportunity to discard the McConnell ruling and to finally declare whole sections of McCain-Feingold unconstitutional. This was the quintessence of the emerging Roberts Court. Whatever the chief had counseled about minimalism during his confirmation hearings, Citizens United showed beyond doubt that his Court had ideological agendas. If precedent or an instinct toward judicial modesty got in the way, so be it.
One long exchange during the argument crystallized what the case represented for conservatives. The interrogators were Alito, Kennedy and Roberts. Their victim was Malcolm Stewart, the Justice Department lawyer defending McCain-Feingold. Alito began by asking why the law necessarily applied only to video-on-demand electioneering communications, like “Hillary: The Movie.” What about DVDs or Internet distribution—or a “campaign biography” in “a public library”? If those contained “the functional equivalent of express advocacy,” could their corporate funding be banned? Instead of trying to confine McCain-Feingold to TV ads—the Court had long ruled that broadcasting, because its spectrum was limited, was subject to more regulation than other media—Stewart hedged.
That wasn’t enough for Alito, who couldn’t believe that Stewart didn’t attempt to limit the law’s reach. “That’s pretty incredible,” Alito noted.
Kennedy took up the attack. Again, Stewart accepted the premise—and with it the possibility that political speech in America was about to become less free. So Roberts, still the best litigator in the courtroom, drove home how dangerous—and dubious—the government’s position now seemed. “If it’s a 500-page book” that “at the end” states, “Vote for X,” Roberts asked, “the government could ban that?”
Sure thing, Malcolm replied, corporate funding for that book could be a felony because it was “express advocacy.”
Nobody actually believed McCain-Feingold purported to criminalize book writing. The FEC had never intimated it. And, anyway, this appeal was limited to a documentary. Stephen Breyer and John Paul Stevens made these points to try to rehabilitate the government’s defense of McCain-Feingold. But the cause was lost. Three of the five conservative justices had succeeded in placing the specter of book banning over campaign finance regulation. These three made plain they were pursuing the broadest possible First Amendment inquiry. With Antonin Scalia and Clarence Thomas having already indicated they would void key provisions of McCain-Feingold, there were five votes to allow unlimited corporate spending on issue ads, just as long as the ads were “independent” of the campaigns themselves.
Yet no ruling came that spring of 2009. According to multiple published accounts, the justices, 5–4, were prepared to rule very broadly in favor of Citizens United. Kennedy and Roberts each had drafted opinions that might speak for the Court. Roberts’s draft was narrow, building on Wisconsin RTF. Historically, the Court’s decisions flow from what came before. There’s an almost Newtonian momentum to them. But as Scalia had done in Heller, Kennedy’s draft tossed aside any notion of incrementalism. He was ready to strike down much of McCain-Feingold, as well as to reverse the 2003 McConnell ruling and a 1990 precedent. Alito, Thomas and Scalia preferred Kennedy’s aggressive approach.
However, David Souter, who by then had announced he was retiring, indicated to the chief he was not only dissenting, but that he thought the Court was acting illegitimately. He was furious, in a way that those who knew him hadn’t seen since Bush v. Gore. A decision to invalidate McCain-Feingold was one thing—dismissive of Congress, disrespectful of precedent and intensely partisan. But, Souter protested, the Court was doing it in a way that undercut itself as an institution. Citizens United itself hadn’t even asked for what the Court was now offering, and so the government hadn’t been given a full opportunity to brief the issues. Whether the conservatives had planned all along to use the case to strip down McCain-Feingold—or whether a broader ruling materialized after Malcolm Stewart’s book-banning debacle—didn’t matter. In effect, Souter was accusing the umpires of changing the strike zone.
The charge made Roberts uneasy. Ever the strategist, playing a long game, he got his colleagues to agree to issue no ruling at all. Instead, Citizens United would be reargued. The clash between the First Amendment and corporate campaign spending would then squarely be before the justices.
Reargument came in early September, which was unusual because the Court begins each term on the first Monday in October. (The justices wanted to be sure the issue was resolved before the November 2010 midterm elections.) There were two different cast members. Justice Souter was gone, replaced by Sonia Sotomayor. And this time, the government was represented by the new solicitor general, Elena Kagan, who herself would join the Court a year later. Sotomayor, hearing her first case, was as skeptical of Citizens United’s position as Souter had been. Kagan, arguing the first appellate case of her life, at least disavowed Stewart’s answer about book banning. “The government’s answer has changed,” she informed the justices, which drew a few smiles on the bench and tee-hees from the courtroom audience.
Four months later, in January 2010, it was clear that neither Sotomayor’s arrival nor Kagan’s debut had changed a thing. The Court simply did what it would have done back in June. Kennedy wrote for the 5–4 conservative majority. Stevens wrote the dissent for the liberals, of which Sotomayor was now part. The core of Citizens United was that Congress could no longer ban independent political expenditures by corporations (as well as by nonprofits, unions and other entities that pooled resources). It didn’t matter if such entities engaged in direct electoral advocacy. Instead of saying only that Jones behaved like a war criminal, an ad could add, “Don’t vote for Jones.” Nor did it matter when the ad appeared. As long as expenditures weren’t “coordinated” with a candidate (whatever that meant), corporations and other entities could raise and spend unlimited amounts. The expenditures weren’t donations to a candidate—they were considered pure political speech, just like distributing leaflets in the town square.
“If the First Amendment has any force,” Kennedy declared, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” By “associations,” he meant corporations, large and small. The result of the ruling was to unleash major sums of new money into politics. “Super PACs”—efficient ways to pool the money—were the spawn of Citizens United (and a related lower-court ruling two months after it).
In that year, 83 Super PACs spent only $63 million, most of it on ads, most of them negative. By the end of the 2016 presidential year, 2,394 Super PACs spent more than $1 billion on federal elections alone (and raised $700 million on top of that)—again, most of it on negative ads. (Seven percent more was spent on Republican candidates than Democrats.) Do the math: that’s a lot of “speech” uttered by a small number of organizations, Yes, the organizations consisted mainly of individual donors, but, no, those individuals weren’t Mom and Pop U.S.A. Most Super PAC money came from a few hundred wealthy individuals.
And of course the idea that the Super PACs were wholly detached from the candidates they served was something out of Never-Never Land. Indeed, staffers for some candidates quit to go create Super PACs that did the bidding of those same candidates. In terms of possible corruption, it made no sense to think candidates would be less in the pocket of a Super PAC donor than of a direct donor. If it walks and talks and spends like a supporter, it’s someone to whom the candidate might feel beholden. Although individuals after Citizens United still were limited in the amount they could directly contribute to a candidate, the existence of Super PACs effectively gutted that constraint. Far from simplifying a tangled body of campaign finance law, Citizens United muddled it even more.
But politicians and pundits have wildly overstated the granular impact of Super PACs, as well as Citizens United generally. Dire predictions about “opening the floodgates to corporate cash”—whether it materialized or not—missed the point. If details mattered, so did unfairly blaming the ruling, year after year, for every sin of campaign financing. In fact, money spent by Super PACs, though significant, was still dwarfed seven times over by the overall amount spent on elections. And most Super PAC funds came not from corporations or big labor, but from individuals. While those individuals were fatcats like Charles Koch and George Soros, they presumably didn’t lack for access and influence anyway. And before Citizens United, they were already allowed to spend unlimited amounts on elections, as long as they didn’t coordinate with a campaign. McCain-Feingold wasn’t aimed at them—only at corporations and other entities. (Traditional business corporations themselves were never an issue. Because they didn’t want to alienate their customers or clients, those corporations weren’t the ones pouring money into campaigns.) In short, Citizens United did not by itself poison the political tap. By then, the water already tasted pretty bad. Money was the issue, not just corporate money.
Citizens United did allow corporations to pool money in Super PACs that then used the war chests to buy TV ads—which would otherwise be too costly for anyone other than the richest individuals. Aggregating wealth made it that much more powerful. And by eliminating the 30- and 60-day windows, the ruling enabled more ads to appear, right up to Election Day. But most important, Citizens United signaled to the plutocracy that the Court was fully taking a laissez-faire approach. After telling the political culture that all bets were off, independent campaign expenditures shot up. It just wasn’t due to those big bad corporations.
In Citizens United, Kennedy and Stevens went back and forth about how free speech and campaign finance regulation might properly be balanced. For Kennedy, there wasn’t any gray area. Regulation equaled censorship. And “the censorship we now confront is vast in its reach,” he warned. “The government has muffled the voices that best represent the most significant segments of the economy.” Perhaps such voices, “of manifold corporations,” represented the kind of “factionalism” abhorred by the Framers, “but the remedy of destroying the liberty of some factions is worse than the disease.” Instead, “the people” should be “entrusted” to judge “what is true and what is false.” Talk of censorship, however, was misplaced. Censorship implied that specific viewpoints were banned, rather than certain means of expression being restricted. Congress didn’t seek to limit Republicans or Democrats, conservatives or liberals. Rather, it aimed to cleanse a political process that, to many rank-and-file citizens, looked rigged.
Stevens, in 90 anguished pages, said Kennedy didn’t appreciate the threat of actual corruption, as well as the public perception of it, that went back to the time of Teddy Roosevelt. “While American democracy is imperfect,” he added, “few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” In what was the last major dissent of his nearly 35 years on the Court, Stevens mocked Kennedy’s cavalier conviction that no amount of money from special interests could taint “faith in our democracy.”
More significant than the Kennedy-Stevens disagreement on the merits of McCain-Feingold was what they thought about the Court’s role in determining the law’s fate. Kennedy had long shown he had no problem with Court interventionism. It didn’t matter if he was overriding a legislature or a state court or an earlier decision of the justices.
Stevens, on the other hand, insisted the Court had engineered an unnecessary outcome, reaching out to tread on legislative privileges. He took up the baton from Souter, accusing Kennedy and the majority of the worst kind of judicial activism: “assertion over tradition”; “absolutism over empiricism”; “rhetoric over reality”; and favoring “broad constitutional theories over narrow statutory grounds.” “Rules of judicial restraint,” Stevens wrote, “used to cabin the Court’s lawmaking power.” Some of his words came from the dissent Souter had drafted in the spring of 2009 but never got to publish. “Essentially,” Stevens concluded, “five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Stevens’s denunciation of conservative hypocrisy was a continuation of what he had said in Heller two years earlier—and in Bush v. Gore eight years before that. Then again, the absence of judicial restraint was a keystone of Roe a generation earlier.
While Roberts was perfectly content to be in the Citizens United majority on the specifics of campaign finance, he didn’t have to do the dirty work himself. He assigned the opinion to Kennedy, who gladly agreed to write it. Kennedy never met a First Amendment plea he didn’t like, and he certainly didn’t mind being the decisive fifth vote again in a landmark case. Roberts, instead, used his concurrence to focus on judicial restraint. He was defensive, all the more so given the grief he continually received over his I’m-just-calling-balls-and-strikes bit at his confirmation hearings. He felt a need to explain why the Court was justified both in overturning recent precedent and in rejecting congressional judgments.
Stare decisis, the chief justice acknowledged, was “the preferred course.” And quoting the mighty Justice Oliver Wendell Holmes Jr., he said that questioning the constitutionality of an act of Congress was “the gravest and most delicate duty that this Court is called upon to perform.” But on both counts this case—isn’t it always this case?—was exceptional. Stare decisis was “neither an inexorable command, nor a mechanical formula of adherence to the latest decision.” Otherwise, “segregation would be legal, minimum wage laws would be unconstitutional, and the government could wiretap ordinary criminal suspects without first obtaining warrants.” And with due respect to Congress’s decision to pass McCain-Feingold, there just was “no way” for the Court to avoid the First Amendment issue in Citizens United. “Our obligation faithfully to interpret the law,” Roberts wrote, required the Court to act boldly. That at least was the assertion—and could be used to undo decades of a lot of settled doctrine in many areas of constitutional law. All it took was five votes.
Six days after the ruling, President Obama condemned the Court, apparently buying in to the “floodgates” narrative. “With all due deference to the separation of powers,” he said in his first State of the Union address, Citizens United “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.” Below him in the House chamber, six black-robed justices in the front rows watched and listened. One of them, Sam Alito, grimaced and shook his head. He was part of the Citizens United majority under fire. And poor Sam was distinctly unaware of the ways of PR.
“Not true,” Alito seemed to mutter. TV cameras caught it.
Citizens United became part of the next news cycle, which was how the White House planned it. “With all due deference to the separation of powers” was impromptu on Obama’s part, perhaps because he caught sight of the justices just below. But the rest was calculated—the president’s language about Citizens United appeared in drafts of his speech. While Obama, in a radio address, had already chided the Court ruling, the State of the Union would be heard by far more people. Yet neither he nor staff could have anticipated Alito’s response—and Obama was surprised by it, as well as by the contretemps that followed.
The State of the Union is the president’s show, and Alito’s display was a breach of decorum. But there was plenty of commentary that Obama shouldn’t have rebuked the justices to their faces. Even Roberts objected. The chief justice told law students at the University of Alabama that “the image of having the members of one branch of government standing up—literally surrounding the Supreme Court—cheering and hollering while the Court, according to the requirements of protocol, has to sit there expressionless, I think, is very troubling.” Roberts, and other justices, wondered why any of them kept attending States of the Union. Orrin Hatch, a Republican senator, called Obama “rude.” (Other justices perfected the art of the stone face. At President Trump’s first State of the Union, in January 2018, when he congratulated himself for appointing “a great new Supreme Court justice,” cameras showed Neil Gorsuch staring blankly ahead. “Never play poker with this man,” suggested several Twitter observers.)
Alito, privately, didn’t let the matter go. Perhaps he took it personally, since Obama, as a senator, had voted against his confirmation. Nearly three years after the State of the Union fuss, late in Obama’s 2012 reelection campaign against Mitt Romney, Alito was riding in a van with clerks on his way back from an event. Alito’s no conversationalist. There were stretches of awkward silence. But as they drove by the Capitol, unprompted, he looked out the window and said, “You know, I hope Romney does win the election.” He paused, then added dryly, “Because then, if I don’t go to the inauguration, no one will care.”
The solicitor general’s office at Justice was also less than delighted about what Obama had done. Although most justices learn to have thick skins most of the time, some of the government lawyers who argued at the Court thereafter wondered if any of the conservatives were a little frostier. Maybe Obama had been impertinent, or maybe the leader of one branch of government had only been dramatically confronting another. But nobody’s authority was challenged. The most revealing aspect of the criticism of Obama was that the branch he was taking on was the Court. It was another example of believing the temple at One First Street was above and apart from politics. Who did the president of the United States think he was making the Court look like just another political institution? Of course, Citizens United did that all by itself.
Even so, the ruling had its merits. To some degree, money does enable political speech. In the age of mass media, passing out pamphlets on the street was quaint at best. Lincoln and Douglas live wouldn’t get the numbers of a high school football game on local cable. If you wanted to reach a large audience now, election ads were the way, and ads cost money. Incumbents, being the safe choice, might draw the most financial backing, making it that much easier for them to stay in office. But insurgents at least had the opportunity to go after the money—and perhaps overcome the power of incumbency. If the First Amendment was Darwinian—allowing the marketplace of ideas to determine who spent what, and which ideas won out—then congressional regulation only warped the competition.
It wasn’t even self-evident that Congress was correct that big money drowns out other voices. In Wisconsin Right to Life, Scalia had made that point about false assumptions. There was “wondrous irony” in “both the genesis and the consequences of [McCain-Feingold],” he wrote in a concurrence. Despite the presumed “corrosive and distorting effects” of “immense aggregations of wealth,” corporations and other entities were “utterly impotent to prevent the passage of this legislation.” He noted further that restricting corporations might concentrate more power in the rich, who were left untouched by McCain-Feingold. “While these wealthy individuals dominate political discourse,” Scalia said, “it is this small, grass-roots organization of Wisconsin Right to Life that is muzzled.”
It didn’t take a cynic to believe that some in Congress supported McCain-Feingold because it benefited incumbents. Rather than “unclogging” channels of communication and change, the law became an “accessory” to “majority tyranny.” That’s how the scholar John Hart Ely famously described legislation that deserved Court intervention. That, he wrote, was part of the compelling reasoning behind Footnote Four of Carolene Products.
Moreover, a lot of spending restrictions seemed to assume voters were morons, so gullible that they would vote for the candidate who blared the most ads at them. The data might show a correlation between money and electoral success, but that sounded less like the fault of money than those who permitted it to dictate their selections. If you voted for the zillionaire-funded hack because she ran the most ads, you ultimately had only yourself to blame. All the 30-second spots in the world hadn’t forced you into it. Maybe you should vote against a candidate on the ground he spent an obscene amount to try to win. So the argument for letting the First Amendment run free—in the form of cash that facilitates speech—can be a good one.
Ted Olson, the lawyer who argued Citizens United, had a favorite way to illustrate how, in his view, a regulation like McCain-Feingold got its First Amendment priorities wrong. Alluding to other Court decisions that championed the right of free expression, he asked, “Why is it easier to dance naked, burn a flag, or wear a T-shirt profanely opposing the draft, than it is to advocate the election or defeat of a president?” That, he said, “cannot be right.”
The problem with that analysis was that duly elected legislators disagreed with it. Congress concluded that at the very least corporate cash produced an appearance of corruption, which in turn undermined faith in elected representatives. The restrictions in McCain-Feingold (and other laws going back a century) were a reasonable effort to counter the possibility of harm to the electoral process. That evil surely seemed greater than that posed by naked dancers, burned flags or profane T-shirts—or marches by the Nazis or the Ku Klux Klan—which was why those expressive activities were granted constitutional protection even when legislators thought otherwise. To think of those respective choices in terms of Carolene Products, are corporations (or, for that matter, rich people or even gun owners) really the type of “discrete and insular minorities” that demanded Court protection from a tyrannical legislature? General Motors doesn’t seem in quite as much need of a judicial shield as African-American schoolchildren in the South.
If one believed legislators acted only in self-interest, and if McCain-Feingold was enacted to entrench incumbents, that would have provided another Carolene Products justification for the justices to jump in. But such cynicism excluded the possibility, and evidence, that Congress acted in good faith. Maybe legislators thought the political system had become infected by special interests, and that limiting at least corporate money might be an effective disinfectant. Such motivation might also be born of self-interest. In the long run, the public wasn’t likely to see as legitimate a Congress overrun by special interests or perceived to be. The point is that high-minded or cynical explanations for McCain-Feingold weren’t mutually exclusive.
At the end of the day, as with most provisions of the Constitution, enforcing the First Amendment requires a balance. “Congress shall make no law…abridging the freedom of speech” doesn’t truly mean “no law.” That’s why, as Holmes declared, one couldn’t falsely shout fire in a theater. Disclosing atomic secrets could land you in jail for life. A civil suit for slander could result in bankruptcy. Speech (and press) didn’t always win. Some rights are subordinate to others. The marketplace of ideas that Kennedy trumpeted had never been entirely unfettered. Having a First Amendment didn’t mean you could weaponize it.
Campaign finance restrictions were a close case. One might even call it a tie, to use the words of John Roberts. In such a case, the tie should have gone to Congress, where ongoing adjustment could happen and democratic consensus might build. Congress was the appropriate coequal branch not because it necessarily was wisest or fairest, but because it most directly, however imperfectly, reflected the “consent of the governed” that Thomas Jefferson celebrated in the Declaration of Independence. Only from the “consent of the governed” did government derive its “just powers.” A well-known federal judge, J. Harvie Wilkinson, had called Heller and Roe two peas in a pod. “The losers in Heller—those who supported the D.C. handgun law, or, more accurately, supported the D.C. voters’ right to enact it—have cause to feel they have been denied the satisfaction of a fair hearing and an honest fight,” he wrote, invoking the words of Scalia. Wilkinson might have added Citizens United to the list.
The ruling was not the cause of all that afflicts politics. But Citizens United was altogether emblematic of the Court’s arrogance about judicial supremacy. Yet again it had swept into the political thicket, taking unto itself an issue that would have been better left to the democratic branches. Worst of all for the Court, Citizens United had the perverse effect of bestowing ownership of the problem on the justices. They weren’t chiefly to blame for the ills of politics, but their ruling made a lot of people in the country think they were.