By Michael Waldman
Friday, January 22, 2010; A19
The Supreme Court on Thursday upended a century's worth of campaign finance law. An immediate question raised by the Citizens United v. Federal Election Commission decision is whether this will flood elections with suddenly legal corporate money. Less understood but deeply significant is what this shows about the court and its relationship to the Obama administration and Congress.
This far-reaching ruling augurs a significant power struggle. For the first time since 1937, an increasingly conservative federal judiciary faces a progressive and activist Congress and president. Until now, it was unclear how the justices would accommodate the new political alignment. The Citizens United decision suggests an assertive court, eager to overturn precedent, looming as a challenge to President Obama's agenda.
Through most of American history, courts have usually stood to the right of the elected branches, especially on issues concerning business. Progressive Era federal judges routinely voided social legislation, from the income tax to the minimum wage and limits on the hours worked by women and children. In the New Deal, the Supreme Court's "nine old men" struck down myriad new programs until Franklin Roosevelt tried to pack the court by expanding its ranks. Only then did the justices relent. (Wags dubbed it "the switch in time that saved nine.") Republican presidents have appointed 12 of the 15 new justices over the past four decades. But those justices had few liberal laws to react to.
Now, though, as elected branches have moved haltingly to the left, the court has moved sharply right. Chief Justice John Roberts has mustered five votes for a conservative judicial approach that eluded his predecessors Warren Burger and William Rehnquist. Long-germinating conservative legal theories have begun to guide opinions, most notably in the 2008 case that found an inviolable right to own a handgun that the court had never previously discerned in 200 years.
Many expected the first big clash of the Obama era to come in voting rights. Last year the court considered reauthorization of the Voting Rights Act of 1965, the landmark civil rights statute. In oral argument, Roberts and Samuel Alito made clear their distaste for the law. But voting 8 to 1, the justices pulled back from making a constitutional ruling at all. Whether through prudent application of the doctrine of "constitutional avoidance," or canny judicial statesmanship, or just an aversion to bad press, the court swerved away from a confrontation. It upheld the landmark law but left it open to future challenges.
Such restraint seemed a faint memory in Citizens United. For starters, the court boldly reached to consider a major constitutional case when it didn't have to. The case itself addressed an arcane issue: whether campaign finance laws were properly applied to an infomercial critical of Hillary Clinton. The justices easily could have ruled on narrow statutory grounds. Instead, last summer, they announced a rushed re-argument, making clear they were itching to overturn a century of constitutional doctrine, even though the case offered no factual or trial record on the broad question of corporate spending. This week the justices struck down laws in 22 states and overturned key decisions from 1990 and 2003 -- all in the middle of a new election cycle. It is hard to remember an instance where the justices reached so far to make major constitutional law. It will have immediate political consequences. Business managers now will be able to spend at will Bloomberg-level sums in congressional races across the country. In partisan and political impact, this rivals Bush v. Gore.
The decision portends an even more deregulatory thrust in campaign finance. Another big campaign finance case soon likely to reach the high court would test the ban on large "soft money" contributions to political parties, last upheld by the court in 2003. Just days after John McCain's presidential campaign ended, the Republican National Committee sued to overturn the provision that was his proudest legislative accomplishment. That would mark a true plunge into partisan wars. Explaining the case, the RNC's political director was blunt: To have a chance of matching Obama's small donations, "we need to be on an equal footing, and we think that law [McCain-Feingold] keeps us from doing that."
What will this mean for Obama's broader agenda? Health care, climate change, financial reregulation, the auto bailout -- all heighten government's role in the economy. The Citizens United ruling suggests the court may smile on even the most audacious conservative legal theories, such as those alleging that regulations are an improper taking by the government. And it shows an unsettling eagerness to overturn precedent in line with ideological predilection. The five votes may be fleeting, depending on who leaves the court next, but the Roberts majority appears ready to use its power while it has it. The Supreme Court and its role may well become a contested issue in this and upcoming elections -- as it has been through much of American history. This time it will be progressives demanding an end to judicial activism.
The writer is executive director of the Brennan Center for Justice at NYU School of Law. The center filed amicus briefs in Citizens United v. FEC.