No Supreme Court decision in decades has generated such open hostilities among the three branches of our government as has the Court’s 5–4 decision in Citizens United v. FEC in January 2010. The five conservative justices, on their own initiative, at the request of no party to the suit, declared that corporations and unions have a constitutional right to spend as much as they wish on television election commercials specifically supporting or targeting particular candidates. President Obama immediately denounced the decision as a catastrophe for American democracy and then, in a highly unusual act, repeated his denunciation in his State of the Union address with six of the justices sitting before him.
“With all due deference to separation of powers,” he said, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” As he spoke one of the conservative justices, Samuel Alito, in an obvious breach of decorum, mouthed a denial, and a short time later Chief Justice John Roberts publicly chastised the President for expressing that opinion on that occasion. The White House press secretary, Robert Gibbs, then explained Obama’s remarks: “The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.” Democrats in Congress have indeed called for a constitutional amendment to repeal the decision and several of them, more realistically, have proposed statutes to mitigate its damage.
The history of the Court’s decision is as extraordinary as its reception. At least since 1907, when Congress passed the Tillman Act at the request of President Theodore Roosevelt, it had been accepted by the nation and the Court that corporations, which are only fictitious persons created by law, do not have the same First Amendment rights to political activity as real people do. In 1990, in Austin v. Michigan Chamber of Commerce,1 the Court firmly upheld that principle. In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA) sponsored by Senators John McCain and Russell Feingold, which forbade corporations to engage in television electioneering for a period of thirty days before a primary for federal office and sixty days before an election. In 2003, in McConnell v. Federal Election Commission (FEC), the Court upheld the constitutionality of that prohibition.2
In the 2008 presidential primary season a small corporation, Citizens United, financed to a minor extent by corporate contributions, tried to broadcast a derogatory movie about Hillary Clinton. The FEC declared the broadcast illegal under the BCRA.…
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