Justice Stevens: Cracks already showing in Supreme Court’s Citizens United doctrine
Just one day after receiving the Presidential Medal of Freedom for his tenure on the Supreme Court – the third longest ever – Justice John Paul Stevens described new evidence of cracks forming in the “Citizens United doctrine” amongst the very same justices who were behind that decision.
The problems run to the heart of the reasoning behind Citizens United v. FEC, that “the First Amendment generally prohibits the suppression of political speech based on the speaker's identity.”
According to Stevens, it’s a simple (if entirely misguided) premise that leads to an equally simple conclusion that the Court doesn’t like: that even foreign nationals cannot be restricted from fully engaging in political speech in American elections the same way U.S. citizens can.
After all, the government can’t use their identity as foreign corporations as a reason to restrict their campaign spending, right?
For evidence of the conflict, Stevens pointed first to Justice Samuel Alito mouthing “not true” to what Stevens called President Barack Obama’s “succinct” and “accurate” comment that Citizens United would “open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.”
Stevens concluded from Alito’s reaction, “in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion.”
In fact, the Court has already begun moving toward doing just that. In Bluman v. FEC, the Court validated a lower court decision to uphold the federal law barring individuals from spending in U.S. electoral campaigns based on their identity as foreign nationals. Because it used a “summary affirmation” to do so, the Supreme Court didn’t have to explain itself, but as Mike Sacks wrote for the Huffington Post, “the court cannot forever evade a written reckoning with the logical conclusion of its Citizens United decision.”
The Court will have to explain how it can justify saying that a corporation selling widgets in the United States has a right to participate in its political process, but a foreign resident selling widgets in the United States does not. As creative as this justification would surely be, a better choice would be to throw out the Citizens United doctrine entirely and recognize that citizens have a right to a government that is dependent on the people alone – not big money special interests.
Luckily for the Court, it has a chance to do that this year if it chooses to hear a case about whether Montana can regulate corporate political spending in state elections to protect its citizens’ right to a political system free of corruption.
In the two short years since Citizens United, we’ve seen the rise of super PACs, an avalanche of “secret money” from groups that do not disclose their funding sources, and a political system where big money holds more and more influence. We can all hope the Court recognizes its mistake and upholds the rights of citizens to have a government truly of, by, and for the people.