I have a column on Citizens United in the Crossroads section in yesterday’s Milwaukee Journal Sentinel.
Taking the other side, Noah Domnitz wants to argue the the decision was “judicial activism” because it overruled existing precedent and restricted the application of long standing laws prohibiting the spending of corporate treasury money on elections. (I say “restricted” because, after Citizens United, corporations still can’t use treasury funds for contributions or coordinated expenditures.)
I disagree. Mr. Domnitz does not define “judicial activism” but seems to equate it with departure from precedent and overturning laws.
This oversimplifies the concept.
Judicial restraint suggests that precedent and long standing arrangements ought to be respected, but not that they can never be revisited. It counsels respect for legislative enactments but to allow clearly unconstitutional laws to stand is its own form of activism – a failure to apply what – in our system – is the supreme law of the land.
The majority in Citizens United was well aware of the issues raised by its decision to overrule certain prior decisions and invalidate what was left of the “blackout” provisions of McCain-Feingold. The key case that Citizens United overturned – Austin v. Michigan Chamber of Commerce – is a 1990 decision that has figured in only a few subsequent decisions of the Court. Both Justice Kennedy’s majority opinion and Chief Justice Roberts’ concurrence go to some lengths to explain that Austin is inconsistent with other decisions of the Court and has not proved to be workable in the intervening years. (As I point out in my column, the ideas that restricting expenditures on speech restricts speech and that corporations have speech rights are hardly new.) Because Austin has figured in relatively few other cases, the majority reasoned, there is no substantial reliance interest cautioning against a change in the law.
Citizens United also invalidated parts of the McCain-Feingold (passed in 2002) and part of the Court’s decision in McConnell v. FEC, decided in 2003 and already substantially undercut by Wisconsin Right to Life v. FEC (2007). Both flow from its decision to abandon Austin.
None of the justices have ever said that judicial restraint requires inflexible adherence to precedent. There are reasons to abandon prior cases that were in error and have proved unworkable and inconsistent with other doctrine. The majority carefully considered those reasons and decided that overruling Austin was justified.
To think otherwise, would be to say that, for example, Brown v. Board of Education was an “activist” decision. There are some who think this, but I don’t. In my view, Plessy was the decision in which principles of judicial restraint were abandoned. The Court ignored the clear implications of the Fourteenth Amendment in order to avoid disrupting the racial regime in the South. The problem is that, in enacting the Fourteenth Amendment, the people of the United States made it quite clear that regime was to be disrupted – in fact, to be destroyed. The majority ignored that law in order to impose what they (incorrectly) thought was a rule (“separate but equal”) that would better serve social peace.
Cross posted at Shark and Shepherd.
The decision in Citizens United invalidated Congressional legislation, overturned the Court’s own precedents, and resolved issues not placed before the Court by the facts or the parties. I suppose that “judicial activism” could be defined to exclude such a decision, but I’d be skeptical of the semantics involved.
Citizens United is an unnecessary, overbroad infliction of court members’ ideology on the people, and it is classic activism which cannot reasonably claim to be merely implementing the Framers’ intentions vis-à-vis the First Amendment.
The touchstone of judicial restraint has always been conformity to “original intent:” the question being whether the Framers’ intentions are mirrored by the decision in question. Did the Framers intend protection of “political speech” to be absolute? If they did, then bribery must be protected; it is frank political speech. But there’s no evidence that the Framers regarded bribery as protected speech. Quite the opposite. Freedom of expression has never been regarded as absolute or unlimited. If money is speech, then it is also arguably a kind of pornographic speech, which is speech that CAN be restricted. Just ask Larry Flynt.
Citizen’s United is an exemplar of an activist decision. It was an unnecessary decision protecting no pre-existing or endangered right, exacerbating old problems, and creating new ones. The decision does not legitimize bribery and corruption, as that was already done long ago. The Citizen’s United decision legitimizes bribery by corporations and foreign interests. It “throws more gasoline on the bonfire,” making a corrupt political system even worse.
Professor Esenberg wrote that “there are reasons to abandon prior cases that were in error and have proved unworkable and inconsistent with other doctrine.” Those reasons depend on the “other doctrine” being consistent with the Framers’ intentions. That is not at all obvious. On the other hand, if being “unworkable” is a good reason to abandon a prior position, then all laws regulating possession, distribution, and use of drugs must be overturned, as they are manifestly unworkable.
Finally, while I applaud Professor Esenberg’s support of Brown v. Board of Education, his evaluation of Plessy is arguable. This is something for another thread.