The United States Supreme Court's Assault on the Constitution, Democracy, and the Rule of Law

Adam Lamparello, Cynthia Swann

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138222441
• eBook ISBN: 9781315407760
• Topic: Law
• Subtopic: Courts
• Index: Law

This book argues that the judiciary, particularly the Supreme Court, should embrace an interpretive framework that promotes equal participation in the democratic process, fosters accountability, and facilitates robust public discourse among citizens of all backgrounds. The authors propose a solution that strives to restore integrity to the Court's decision-making process by eschewing ideology and a focus on the utility of outcomes in favor of an intellectually honest jurisprudence that gives all citizens a meaningful voice in governance.

The work is divided into seven parts. Parts I–V identify the worst decisions in the Court history and the common themes that helped produce them. The chapters within each part are dedicated to a single Supreme Court decision, in which the authors analyze the Court's reasoning and explain why it undermined federalism, separation of powers, and democratic governance. Additionally, the authors explain why these decisions compromised the relationship between the Court and coordinate branches, the federal government and the states, and citizens and their elected representatives. Part VI identifies several of the best Supreme Court decisions, and explains why they provide a principled framework that can be applied in other cases and result in a pro-democracy jurisprudence. Finally, in Part VII the authors propose a comprehensive solution that should inform the Justices' judicial philosophies, regardless of ideology, and strive to promote an equal and participatory democracy. The final chapter offers concluding thoughts and argues that a healthy democracy is the foundation upon which equality rests, and that a collective view of rights is the path by which to restore liberty for all citizens.

Part I

The cases that prohibited the legislative and executive branches from remedying corruption and unfairness in the political and democratic process

We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.

—Louis D. Brandeis

1

Citizens United v. FEC

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

—United States Constitution, Amend. I

Summary

• The Court’s opinion in Citizens United created a First Amendment hierarchy that favored the wealthy and enabled them to have disproportionate influence in the democratic process.
• The Court’s opinion is contrary to, rather than consistent with, the First Amendment’s original purposes and embraces individual liberty over collective liberty.
• The Court should have deferred to the coordinate branches’ policy decision, or refused to grant certiorari, because the First Amendment’s text did not address the issue of whether corporations were speakers or whether speech was money.
• Ironically, a different outcome in Citizens United would not have remedied an inherent flaw in free societies: democracy and equality are not compatible.
• The Court should embrace a jurisprudence that links processes with outcomes by rooting decisions in a reasonable interpretation of the text, narrowly defining rights, and preferring severance over invalidation of a law in its entirety.

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Introduction

Many commentators criticize the Court’s decision in Citizens United, arguing that it inflicted substantial damage to the integrity of the democratic process.¹ In a 5–4 decision, the Court invalidated a law that strove to reduce the influence of money in politics and equalize all speakers’ ability to meaningfully influence and gain access to public officials. At first glance, Citizens United appears to have enshrined inequality into the democratic process because the Court’s holding allows corporations to use general treasury funds to make independent expenditures to political candidates. This gives some corporations a louder – and more powerful – voice in the electoral and political process, provides corporations with favored access to elected officials, and renders the votes of millions of citizens at the ballot box more symbolic than real.

Perhaps the most problematic aspect of Citizens United was the Court’s interference with the coordinate branch’s ability to rectify the corruption and inequality that plague state and federal elections. The Court should have deferred to the legislative and executive branches’ judgment, as both branches were intimately familiar with the problem the law sought to address (i.e., corruption) and because the text of the First Amendment was indeterminate, in that it did not conclusively resolve the questions whether corporations should be considered speakers or whether money constitutes speech. In the face of textual ambiguities, the salutary and pro-democracy objectives that the law furthered, and the coordinate branches’ familiarity with the issue, the Court should have refused to grant certiorari. In so doing, the Court would have safeguarded its institutional legitimacy and permitted the people’s elected representatives to define constitutional meaning where the textual provision is susceptible to differing interpretations.

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The decision

In Citizens United, a nonprofit organization challenged §203 of the Bipartisan Campaign Reform Act of 2002. The act prohibited “corporations and unions from using their general treasury funds to make independent expenditures for speech that is an ‘electioneering communication’ or for speech that expressly advocates the election or defeat of a candidate.”² An electioneering communication was defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary election.³ The act also provided that the communication must be “publicly distributed,” which in “the case of a candidate for nomination for President” means that the communication “[c]an be received by 50,000 or more persons in a State where a primary election … is being held within 30 days.”⁴

By way of background, in Austin v. Michigan Chamber of Commerce the Court had previously upheld limits on electioneering, reasoning that “political speech may be banned based on the speaker’s corporate identity.”⁵ In Citizens United, however, the Court overruled Austin and held that the act violated the corporation’s First Amendment rights. The Court based its decision on three grounds.

First, the act constituted an outright ban on speech, and the type of speech that was banned – advertisements and books advocating for political candidates or issues – constituted “classic examples of censorship.”⁶ The Court noted that

[a]s a ‘restriction on the amount of money a person or group can spend on political communication during a campaign,’ that statute ‘necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.’⁷

Second, the Court held that the act would have compromised the integrity of the democratic process. The majority explained that speech “is an essential mechanism of democracy, for it is the means to hold officials accountable to the people” and underscored “[t]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”⁸

Third, the Court rejected the antidistortion rationale enunciated in Austin, which upheld limits on electioneering for the purpose of “curb[ing] the political influence of ‘those who exercise control over large aggregations of capital.’ ”⁹ In prior cases, Congress had specifically relied on the principle that the “differing structures and purposes” of corporations and unions “may require different forms of regulation in order to protect the integrity of the electoral process.”¹⁰ The Court rejected this justification, holding “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”¹¹ Writing for the majority, Justice Kennedy stated:

Favoritism and influence are not … avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.¹²

In so holding, the Court rejected the argument that “the Government has an interest ‘in equalizing the relative ability of individuals and groups to influence the outcome of elections.’ ”¹³ The Court explained that the “First Amendment’s protections do not depend on the speaker’s ‘financial ability to engage in public discussion.’ ”¹⁴ As the majority asserted, “the rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”¹⁵ In the majority’s view, such a result would interfere “with the ‘open marketplace’ of ideas protected by the First Amendment.”¹⁶ For these reasons, the Court held that the only permissible basis upon which Congress can regulate corporate expenditure is to prevent elected officials from securing “a political quid pro quo [i.e., a bribe].”¹⁷

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Analysis

If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be. So that’s No. 1 on my list.

The Court’s interference with that decision of the political branches seemed to me out of order. The Court should have respected the legislative judgment. Legislators know much more about elections than the Court does. And the same was true of Citizens United. I think members of the legislature, people who have to run for office, know the connection between money and influence on what laws get passed.

Justice Ruth Bader Ginsburg

The Free Speech Clause of the First Amendment provides that Congress “shall make no law … abridging the freedom of speech.”¹⁸ On its face, this broadly phrased language is ambiguous because reasonable jurists would likely disagree regarding whether a law “abridges” speech. For example, does an abridgment of speech occur if the government regulates the time, place, and manner in which speech is disseminated? Does the government abridge speech by outlawing the manufacture and sale of violent video games? In fact, what constitutes “speech”? Does speech refer merely to verbal utterances on matters of political and social importance, or does speech encompass nonverbal expressions, such as campaign contributions? Additionally, who qualifies as a speaker? Must the speaker be an individual or group, or do speakers include corporate entities?

Given the First’s Amendment’s ambiguous language, when assessing the constitutionality of §203 the Court had three options at its disposal. First, the Court could have refus...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Legal Tables
• Acknowledgements
• Preface: The landmark cases that undermined U.S. constitutional law
• Introduction: Relevant constitutional provisions and legal terms
• Part I The cases that prohibited the legislative and executive branches from remedying corruption and unfairness in the political and democratic process
• Part II The cases in which the court inappropriately deferred to the legislative and executive branches
• Part III The cases that expanded judicial review at the expense of democratic governance
• Part IV The cases that weakened individual rights and promoted inequality
• Part V The cases that encroached on state authority and individual autonomy
• Part VI The landmark cases that promoted democracy, respected federalism, strengthened the rule of law, and preserved the Court’s institutional legitimacy
• Part VII An interpretive theory that promotes federalism, separation of powers and principled judicial review
• Index