Lawyers around Washington, D.C., love to joke that the highest court in the land is not the Supreme Court of the United States-
, but rather the basketball court located on the fifth floor of the Supreme Court Building. Either way, five justices committed a flagrant foul last week.
On Jan. 21, the Supreme Court handed down its decision in Citizens United v. Federal Election Commission. It was an opinion legal commentators, politicians and law students had been awaiting for some time. In a bitterly divided 5-4 opinion, the court overturned more than a century's worth of precedent and cleared the way for corporations to flood elections with an exceptional amount of money.
The decision was announced to an audience that only half-filled the court gallery. Justice Anthony M. Kennedy, a one-time advocate of restrictive campaign-finance laws, delivered the majority opinion. It took him about 5 minutes to read a summary of the court's opinion, but astounded observers immediately grasped the wide-ranging impact of the decision.
It was clear that the court was extending an American citizen's right to freedom of speech to corporations — fictional individuals. Kennedy's new interpretation opened the door to corporations using general funds to support or oppose candidates in elections, and overturned restrictions enacted in McCain-Feingold campaign-finance reforms that limited independent corporate expenditures in elections. Corporate spending in electoral politics may be both direct and unlimited for the foreseeable future.
And, if spending money is speech, corporations are screaming. They are screaming at politicians over you, me and anyone else unable to empty millions of dollars from their coffers, unfettered.
This case, more than any other of my generation, has the potential to threaten American democracy. Every generation witnesses pivotal moments. This is ours.
Bush v. Gore is seen by many as a political decision. Roe v. Wade is seen by some as immoral. Dred Scott today is seen as unconscionable. Each, depending on your point of view, had potentially corrosive effects on our nation's history and identity. Each, however, was delivered within a political system that possessed legitimacy and provided an opportunity for recourse through its checks and balances.
The court in Citizens United abandoned this balancing of power. It inserted itself, and a substantial amount of new money, into the body politic. A vital check within our system of government vanished, only to be replaced with one of the monetary kind.
As I listened to Kennedy, I slumped over and contended with a roller coaster of emotions. But then, reminiscent of John Paul Jones' famous cry of "I have not yet begun to fight," Justice John Paul Stevens delivered a rousing summary of his dissenting opinion, which is one page longer than his age — 89 years, 90 pages. He spoke for about 20 minutes, and I could see that he and the minority were grappling with the same emotions as I was.
He said aloud, and reiterated in writing, "I regret the length of what follows, but the importance and novelty of the Court's opinion require a full response."
And, oh, what a response it was.
I urge you to read the passionate pleas of the elder statesman of the court and to consider the effect Citizens United will have on American democracy. It is an effect I fear.
I agree with Stevens when he concludes: "It is a strange time to repudiate … common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."