Citizens United v. FEC: Verdict First, Trial Later
An old baseball legend tells of a player who hit a game-winning home run. He returned to the dugout, expecting a hero’s welcome. Instead he found an irate manager who had ordered him to lay down a bunt.
In its decision that ended most restrictions on corporate election spending (PDF), the Supreme Court behaved a lot like that ballplayer. The court swung for the fences when it should have adopted a more disciplined strategy.
As the 2008 presidential campaigns began to take shape, Citizens United, a conservative political group, produced a 90-minute movie that expressed the extreme right’s dislike of candidate Hillary Clinton. Citizens United hoped to broadcast the movie via on-demand cable television.
There was one problem: the Bipartisan Campaign Reform Act of 2002, also known as BCRA or the McCain-Feingold Act (yes, that McCain). This law restricted corporations from using their general treasuries to support or oppose candidates for federal office. Since Citizens United was organized as a nonprofit corporation, the group feared the Federal Communications Commission would use the law to block its plans. It asked the court to forbid any such action.
Citizens United never directly asked the court to overturn the campaign finance law. It only wanted a declaration that the law did not apply in this case.
It was a reasonable request. The law was designed to control political advertising by large for-profit corporations using their shareholders’ money. Citizens United is a member-supported nonprofit organization that wanted to broadcast an on-demand movie.
That was not what the court’s majority wanted. In an Alice-in-Wonderland case of verdict first, the justices had already determined that they wanted to rule the entire statute unconstitutional. When the first round of arguments failed to justify the predetermined outcome, the court ordered another round and finally got its way.
The Supreme Court traditionally shows much more discipline. It uses its power sparingly. It resists the temptation to convert a simple question into a landmark decision.
In this case, the court overturned existing law not because it had to but because it wanted to. No matter how you feel about corporate freedom of speech, such undisciplined behavior leaves a scary precedent.