Friday, March 10, 2023

Justice Stevens' Dissent Shreds Citizens United Majority Opinion


Most grownups 30 years or older know that money is power and that “power corrupts and absolute power corrupts absolutely.” 
In 2010, the Supreme Court of the United States, or SCOTUS for short, made two things easier: (1) corruption in politics and (2) for corporations to more effectively control the outcomes of state and federal elections. Of course, they would never admit such goals.

 SCOTUS accomplished this when they decided the case Citizens United v. Federal Election Commission (FEC). The majority opinion naively dismissed concerns over corruption and distortion of the political process from excessive contributions and campaign expenditures.
Former Justice Sandra Day O’Connor commented in the related McConnell case that, “Money, like water, will always find an outlet” (Urofsky, 2020, 189).
For over 100 years our U.S. Congress has struggled to minimize corruption by making various campaign finance laws. The purpose of these laws is to prevent politicians from corruptly voting for laws because some billionaire or some corporation donated a huge amount of money to that politician and/or their campaign. How much money does the trick for influencing the vote of a politician? It could be $100,000 or a million or more. And politicians track all contributions because they need to know who it’s most important to pay attention to; and, after one election they’ll need more money for re-election.
There is nothing new about the problem of influence peddling, pay to play, or sheer bribery!

Our Congress has made many efforts at campaign finance reform. But because money is so powerful and elections so expensive, creating effective laws are exceedingly difficult. As soon as such laws are passed, powerful groups of politicians and business leaders file lawsuits to hopefully overturn or effectively disable the campaign finance laws.
I have read and studied the Citizens United v. FEC majority opinion written by Justice Anthony Kennedy; it was about 50 pages long. I have read and studied the almost 100 page dissent by Justice John Paul Stevens. Superficially both the majority opinion and the dissent gave me clear and thoughtful impressions; however, their conclusions were completely opposite. Eventually, I realized that Kennedy and Stevens were clearly writing about an extremely important but complex, hard to handle, topic. Justice Kennedy glossed over many important details and dismissively ignored important campaign corruption problems; whereas, Justice Stevens refuted Kennedy’s majority opinion point by point, providing all the details necessary to grasp the full extent of the problems to be addressed. Stevens’ dissent was clearly written, amply covered the historical background and convincingly shred the majority opinion. 
As you will notice, below, the four campaign finance cases discussed are noteworthy for producing much confusion in the justices and for split court decisions. The Citizen United district court judges each wrote separate opinions, and these were what came on appeal to SCOTUS.

I want you to know the sources of my information. I want you to have the best knowledge, the most solid facts for becoming a more powerful citizen and voter. Here are four books from which come most of facts you’ll read in this blog. My opinions and conclusions are consistent with these four books and also benefit from many additional sources. 
(1) If you only read one of the four books, read: Our Damaged Democracy: We The People Must Act, by Joseph A. Califano, Jr. (2018). Very readable. Califano, an attorney, has spent 30 years in Washington DC government operations: serving at the Pentagon; on the White Hose staff; in the Cabinet as U.S. Secretary of Health, Education, and Welfare; as a Wall Street attorney; as a member of the board of 15 public companies and not-for-profit institutions. And he has authored 14 books. I completely agree with one of the book’s reviewers who wrote that the book is an “[E]lightened, entertaining, and rigorously nonpartisan book.”
(2) If you want to read ALL the background which produced Citizens United v. FEC, read Melvin I. Urofsky’s 2020 book The Campaign Finance Cases: Buckley, McConnell, Citizens United, and McCutcheon. This has 187 pages of well-written but dense prose. Very authoritative. It has five appendices and other pages of useful lists of cases, etc. 
(3) If you want a fascinating, very readable, story of how the corporations went from being “artificial persons” to getting pretty close to actual personhood with a long list of various rights, read: Adam Winkler’s 2018 book We The Corporations: How American Businesses Won Their Civil Rights. From this book you will learn about:
“The transformation of the Fourteenth Amendment from a guarantee of equal rights for racial minorities into a tool for corporations to strike down business regulation, was the one of the first quantitative studies of the Supreme Court, conducted in 1912.”
That study discovered that less than 5% of 604 Fourteenth Amendment cases involved African Americans. There were 28 cases, and in nearly all of those 28 cases the racial minorities lost.
More than half of the 604 cases involved corporations successfully striking down regulations on business such as: minimum wage, child labor laws, and zoning laws.
(4) If your want to read a smaller and easy to read book, then get Thom Hartmann’s book, The Hidden History of the Supreme Court and The Betrayal of America (2019). There’s plenty of well-written drama. This will get you riled up and motivated to take action!
These are the four books which finally revealed the missing pieces by which I could acquire an overall understanding of the good, the bad, and the ugly of politics in government. Indeed, there are so many moving pieces, pieces hiding themselves, going in different directions and fighting one another. It is impossible to hold the full pattern of all these pieces in one’s mind at one time. 
But little by little, we can learn how the Presidency, Congress, and the Supreme Court actually work. Don’t be discouraged! Everyone can be a life long learner about something in government that matters to you; and this will make you proud.
Here, from Urofsky (2020, xi and xiii) are the worthy ideals or goals most can agree on:
“On the one hand, there is the desire [goal] to protect the integrity of the political system from the impact of large contributions from wealthy donors, unions, or corporations. On the other hand is the need [goal] to protect political speech, which is at the core of First Amendment protection” 
But, these goals are in conflict with each other.
Over the years, politicians and experts in government have labored towards these ideals and goals. The output of their work, including many SCOTUS majority and dissenting opinions show two themes:
“One is an appeal to the command of the First Amendment that Congress shall make no law abridging freedom of speech, especially political speech, which many scholars believe to be the core value protected by the Speech Clause.”
“The other is an appeal to facts and common sense, that while political speech is important, if we allow large sums of money to influence who can talk, who can gain access to candidates and officeholders, the political process will be corrupted and the speech will be meaningless.”
And also, these appeals [actually goals] are in conflict with each other.
Campaign financing reform is inherently difficult because of conflicting goals and conflicting appeals; any laws written will have contractions which then must be very carefully resolved by SCOTUS. No simple-minded "solutions" like Citizens United v. FED will work out!

Joseph Califano, in Our Damaged Democracy, writes that:
 “It’s time for the Supreme Court to scrap as mistaken and bad law the decision in Buckley v. Valeo, and its progeny like Citizens United. Giving money First Amendment rights has generated a steady rise in soft and hard corruption, fed a decline of trust in government, and made a mockery of the court’s one person, one vote decision” (Califano, 2018, page 154).
Califano severely criticizes the “[J]ustices of the Supreme Court who have made it impossible for the legislative branch even to consider reforms” (Califano, 2018, page 154).
When a candidate wins, “[T]he people who were his or her big bankrollers have special access unavailable to the individual voter. By blessing unlimited political contribution, the court has given special interest and single-issue individuals the power to buy that access and undermine the value of the individual citizen’s vote” (Califano, 2018, page 154).

Urofsky asserts that to understand Citizens United, one must start with studying Buckley v. Valeo (1976).
In Buckley the Court distinguished campaign contributions from campaign expenses (Urofsky, 2020, xiv). 
Campaign contributions constitute money given to candidates
• was not classified as being speech
• the amount given could be regulated, limited
Campaign expenses was money spent by candidates
• campaign expenditures constituted speech
• campaign expenses could not be regulated by government
When I first read this distinction I was befuddled. I read it several times but couldn’t grasp it as a valid distinction; the distinction seemed arbitrary, contrived for reasons not apparent. Urofsky wrote:
“[T]he Court’s reasoning is confusing.” Later in his discussion he wrote, “But although the Court apparently equated the expenditure of money by candidates with free expression, the lack of rigorous analysis in the opinion would cloud the issue of campaign finance reform for the next quarter century” (Urofsky, 2020, page 44).
According to Califano (2018, page 128): Buckley v. Valeo was a date “which will live in infamy” because SCOTUS gave money First Amendment rights. 
This is a little overstated, because the free speech First Amendment rights applied to campaign expenditures and not to campaign contributions. Additionally, campaign contributions as speech or a version of some other civil right goes back for many decades.
Buckley struck down three amendments to the Federal Election Campaign Act which put a limit on total spending by a candidate’s campaign. Buckley eliminated any limit on campaign expenditures. A candidate could receive lots of money from almost any source AND once it’s expended on his campaign then it’s not limited (this sounds somewhat puzzling to me, however).

In 2010 SCOTUS held that “[T]he free speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations, including nonprofit corporations, labor unions, and other associations” (Wikipedia: An independent expenditure is a political campaign contribution that clearly advocates for the election or defeat of a clearly identified candidate that is not made in cooperation or coordination with a candidate. 
Citizens United also overruled Austin v. Michigan Chamber of Commerce and overruled some restrictions in McConnell v. FED.

“Our damaged democracy” isn’t going to fall off a cliff any time soon. Over the last 250 years there have been many crazy times, bad laws, nutty SCOTUS decisions, and corrupt presidents—and we survived, made a few reforms, and found new and different ways to swing from extreme to another. 
Politics, I’ve come to realize, is the most unwieldy (hard to carry or manage because of size, shape, etc.) of topics to understand and cope with. I guess it is because we’re dealing with masses of people. Whatever one looks at in politics, it’s kind of familiar but has weird causes and related issues, on and on, endlessly, it seems.
But this past year I’ve been hugely gratified in the study of American government. My appreciation for politicians of all parties has grown. I’m actually a lot less cynical because I’ve come to acknowledge the substantial efforts of many public figures whom I formerly disliked for superficial reasons. 

And finally, there are many more blogs to be written!

For references, see the relevant page on the website.

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