Professor Jeffrey Rosen has written an attack on Citizens United v. FEC that attempts to transform the progressive complaints against the case into the main reason for the loss of “Americans’ confidence in their political system.” Rosen presents no evidence for this assertion, of course, perhaps because none exists. The Pew Charitable Trust’s recent poll of public priorities concluded—even after almost-hourly criticisms of Super PACs in the media and on the campaign trail and the focus on Citizens United allegedly resulting from the Occupy Wall Street protest—that campaign finance “remains on the back burner for most Americans” and is one of the lowest ranked issues across party lines. This has changed little from previous years. It is difficult to imagine how something that is “on the back burner for most Americans” has caused Americans to become so disillusioned.
Nonetheless, Professor Rosen sees signs of a “backlash” and faults the U.S. Supreme Court for failing to foresee this inevitable result. Rosen’s evidence of this “backlash” is weak: He cites the Move to Amend effort to “Occupy the Supreme Court,” an effort most notable for its utter failure to cause people to notice that it was occurring. He also cites a single decision of the Montana Supreme Court rejecting Citizens United as proof of a “judicial backlash.” But the Montana decision is unique. No other court has so blatantly rejected on-point Supreme Court precedent and a check of Lexis-Nexis reveals that Citizens United has been routinely followed, cited, and relied upon by dozens of federal and state courts across the country.
Professor Rosen attributes the Court’s failure to predict this “backlash” to the fact that none of the Justices were politicians before coming to the Court. Rosen implies that, had some of the Justices been in politics prior to becoming justices, they would have understood how Citizens United would be received and, presumably, voted to uphold the law at issue in the case. He celebrates Justices like Warren, Douglas and Black, among others, who had political experience before coming to the Court.
Professor Rosen may have forgotten that Citizens United was not the first time Congress’s ban on political expenditures by corporations and unions had come before the Court. The Court had previously considered the ban twice and sidestepped the constitutional issue both times. In 1958, in U.S. v. International Union United Automobile, Aircraft and Agricultural Implement Workers of America, three justices dissented. These three justices would have reached the constitutional issue and struck the law down. These three justices were Warren, Douglas and Black. In the dissent, Justice Douglas called the law “a broadside assault on the freedom of political expression guaranteed by the First Amendment.” He wrote:
Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate. First Amendment rights are part of the heritage of all persons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worthy or unworthy.
Similarly, when the Court considered the law in 1948, four Justices dissented in the case. These Justices would have also reached the constitutional question and struck the law down. Although Justice Rutledge, a former academic and judge, wrote the dissent, he was joined by Justices Black, Douglas and Murphy. In case one is unfamiliar with the career of Justice Murphy, who died when he was just 59, he was a former U.S. Attorney General, Governor of Michigan, Mayor of Detroit, and Governor-General of the Philippines. Justice Rutledge’s dissent noted:
A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.
Perhaps these politicians understood something that Professor Rosen does not: that a constitutional command that “Congress shall make no law . . . abridging the freedom of speech” means that Congress cannot constitutionally make a law abridging freedom of speech, regardless of “the serious political implications [the Court] could create” in coming to that conclusion. Ultimately, that is the role of the courts in constitutional cases—to uphold constitutional principles even in the face of public opposition, real or, in this case, mostly imagined. Indeed, this is exactly when judicial adherence to principle is most needed. Otherwise, the First Amendment, and the rest of our Constitution, becomes nothing but words on paper. Justices Warren, Douglas and Black understood this well, as did the justices in the majority in Citizens United.