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The Supreme Court’s Shoddy Scholarship

Posted on Jan 24, 2010

By Ruth Marcus

In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonesty.

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Many of those commenting on the decision in Citizens United v. Federal Election Commission have focused on the power grab part. I agree. It was unnecessary for the court to go so far when there were several less-radical grounds available. It was audacious to seize the opportunity to overrule precedents when the parties had not pressed this issue and the lower courts not considered it. It was the height of activism to usurp the judgments of Congress and state legislatures about how best to prevent corruption of the political process.

“If it is not necessary to decide more, it is necessary not to decide more,” a wise judge once wrote. That was Chief Justice John Roberts—back when—and dissenting Justice John Paul Stevens rightly turned that line against him. 

As bad as the court’s activism, though, was its shoddy scholarship. 

First, the majority flung about dark warnings of “censorship” and “banned” speech as if upholding the existing rules would leave corporations and labor unions with no voice in the political process. Untrue. Under federal election law before the Supreme Court demolished it, corporations and labor unions were free to say whatever they wanted about political candidates whenever they wanted to say it. They simply were not permitted to use unlimited general treasury funds to do so. Instead, they were required to use money raised by their political action committees from employees and members. This is hardly banning speech.


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Second, in the face of logic and history, the majority acted as if there could be no constitutional distinction between a corporation and a human being. Untrue. The Supreme Court has long held that corporations are considered “persons” under the Constitution and therefore entitled to its protections. For more than a century, Congress has barred corporations from making direct contributions to political candidates, with no suggestion that it must treat corporate persons the same as real ones; that prohibition stands, at least for now. The “conceit” of corporate personhood, as Stevens called it, does not mandate absolute equivalence. That corporations enjoy free speech protections does not mean they enjoy every protection afforded an actual person. Is a corporation entitled to vote? To run for office?

Third, misreading its precedents and cherry-picking quotations, the majority acted as if the chief case it overturned was an outlier. In that 1990 case, Austin v. Michigan Chamber of Commerce, a six-member majority came to the unsurprising conclusion that a state law prohibiting corporations from making unlimited independent expenditures from their general funds was constitutional. The court dismissed this ruling as “a significant departure from ancient First Amendment principles.” Again, untrue.

In a 1982 case, the court—in a unanimous opinion by then-Justice William Rehnquist—noted that Congress, in writing campaign finance law, was entitled to “considerable deference” in taking into account “the particular legal and economic attributes of corporations and labor organizations” and had made “a permissible assessment of the dangers posed by those entities to the electoral process.” Four years later, even as it carved out an exception for nonprofit corporations, the court reaffirmed “the need to restrict the influence of political war chests funneled through the corporate form.” 

The Citizens United majority relied heavily on a 1978 case overturning a Massachusetts law that prohibited corporations from spending their own money to defeat certain referendums. But that case specifically noted that “a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.”

Fourth, the majority bizarrely invoked the “Mr. Smith Goes to Washington” defense. Under the Austin ruling, Justice Anthony M. Kennedy argued, lawmakers unhappy with being lampooned in the movie “could have done more than discourage its distribution—they could have banned the film.” Beyond untrue. There is no scenario under which works of art about fictional lawmakers could be limited by campaign finance laws. 

That the majority would stoop to this claim underscores the weakness of its case—and the audacity of the result it has inflicted on the political process.

Ruth Marcus’ e-mail address is marcusr(at symbol)

© 2009, Washington Post Writers Group

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LocalHero's avatar

By LocalHero, January 31, 2010 at 10:27 pm Link to this comment

“Is a corporation entitled to vote? To run for office?”

They are now! There is nothing standing in the way now to stop a corporation from running it’s own hand-picked candidate for office.

The horrible “decision” to grant corporations the same rights as a real person in the 1880’s was the first nail in the coffin of the Republic. This is the “kill-shot.”

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By samosamo, January 30, 2010 at 10:23 am Link to this comment

I know this is a week old post but I just could not but be
alarmed at what this decision by the criminal members of the
supreme court have accomplished with their tricky decision,
maybe makes it easier to haul people into jail for what they
say and for the non-person entities those free speech rights
allow them to PURCHASE the seats up for election.

Damn, I thought that was election fraud.

Guess now we will all have to be ‘Careful With Those Words,

You will have to copy and paste this in the address bar:

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By Spike, January 26, 2010 at 6:55 pm Link to this comment
(Unregistered commenter)

It is important to remember: it is not “Supreme Court”, it is ‘supreme Court’. Any laws or decisions that are not valid according to our constitution, are without value from their first utterance.

These need to give Larry Dodge a call.

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By Roberto, January 26, 2010 at 11:45 am Link to this comment
(Unregistered commenter)

Right on mlb! Good post. “They are unconstitutional for failing to prevent corporations from abridging our free speech, not for failing to allow them to do it with complete abandon.” You are tottaly right; this corrupt decision must be overturned!

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By mlb, January 26, 2010 at 7:06 am Link to this comment

Thank you Ruth Marcus for not mincing words in your writings, including this piece.

Put up the bucks and your voice will be heard.  That’s not free speech, it’s speech for sale, and I don’t believe for a moment that the Supreme Court majority doesn’t understand that.  They’re guilty of supreme dishonesty. 

You can abridge other’s free speech by turning their volume down or by turning your volume up.  That is, you can of course actively prevent them from speaking,  but you can achieve the same effect by amplifying your own voice sufficiently.  The political advantage to the second approach is that the violator can (fatuously) claim that he’s actually letting everyone else say whatever they want and therefore he’s doing nothing wrong.

With amounts of money that dwarf those of nearly all citizens, through the corporate media, campaign contributions, lobbying, and other means, corporations are able to amplify their voices to such an extent that other voices are effectively drowned out, destroying free speech.             

Note that the word used in the First Amendment is “abridge”, a much more inclusive word than “prevent” or “outlaw”.  To abridge other’s voices one need merely diminish them in some way; completely silencing them is not necessary.  Corporations do it in a systematic and ongoing way, without breaking any laws.  Therefore, our current laws are unconstitutional, but for exactly the opposite reason than that given by the court.  They are unconstitutional for failing to prevent corporations from abridging our free speech, not for failing to allow them to do it with complete abandon.

We can’t take this lying down.  So what if they’re the “Supreme” Court?  When the people we entrust with an extraordinary level of responsibility to uphold our Constitution instead brazenly undermine it,  it’s incumbent upon all of us to stop them in their tracks.  A group of 5 Constitution-hating precedent-despising ideologues who hold democracy and the American people in contempt cannot be allowed to trash our country in this way.  One way or another, by whatever means we can devise, even if it means amending the Constitution, this wrongful decision must be overturned.

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By gerardz3, January 26, 2010 at 5:41 am Link to this comment
(Unregistered commenter)

They are cruising for a bruising along with the rest of their kind. Time will come for their demisse and retrobution. Their rape of people and the ecolodgy will catch up to them. they are the ultimate scum of man kind. Shame on them. Were’s our outrage?

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By diamond, January 25, 2010 at 3:36 pm Link to this comment

Are you really surprised that the Supreme Court ( a handpicked bunch of conservative stooges) don’t know the difference between a corporation and a human being? Or that they privilege a corporation over citizens and give them the right to use their ill-gotten gains to flood the mainstream media with far right propaganda in the service of fascism, the free market and globalization? Or do I repeat myself?They gave you George W. Bush and Dick Cheney. I think they’re capable of anything.

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By pabelmont, January 25, 2010 at 7:29 am Link to this comment

Apart from the substance of the decision (“let’s turn it all over to whoever has the most money, money IS speech, money is THE ONLY speech, etc.), is the method.

The reason appellate courts have traditionally refused to decide matters not argued “below” and not argued by the lawyers is that they wish to avoid making the sorts of blunders noted in this article. If the lawyers have had a chance to present both sides, there is less chance for the court to say something that neither side ever thought about. That’s why courts sometimes ask for re-briefing on a subject they have become interested in.

Also, the intermediate appellate courts are not slouches and the Supreme Court usually wants to have the help—even if they reject it—of the usually careful thinking of those lower courts.

The court’s failure to take these cautious measures taken with the ideologically-charged subject-matter of this opinion suggests that the matter was decided on a purely “activist” (that is, ideological) basis; just as we’d all except from right-wing judges who present themselves as “original intenters” and non-activists.

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By Inherit The Wind, January 25, 2010 at 4:30 am Link to this comment

In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonesty.

Did you miss the part where they implied that they are going to re-make American Law in the Conservative Corporate image regardless of what the Constitution says? 

They aren’t even going to BOTHER doing the intellectual backflips that William Rehnquist used to excel in to justify his votes.

The message is “We’re the Supremes.  We can do ANYTHING we want and WE ARE GOING TO DO IT NOW THAT WE HAVE THE VOTES!”

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