No, Citizens United Didn’t Ruin Our Democracy

Money has increasingly dominated American politics but the court case had little to do with it.

In “John Roberts comes face to face with the mess he made,” WaPo columnist Dana Milbank recycles a familiar trope:

Roberts’s captivity is entirely fitting: He is forced to witness, with his own eyes, the mess he and his colleagues on the Supreme Court have made of the U.S. political system. As representatives of all three branches of government attend this unhappy family reunion, the living consequences of the Roberts Court’s decisions, and their corrosive effect on democracy, are plain to see.

Ten years to the day before Trump’s impeachment trial began, the Supreme Court released its Citizens United decision, plunging the country into the era of super PACs and unlimited, unregulated, secret campaign money from billionaires and foreign interests. Citizens United, and the resulting rise of the super PAC, led directly to this impeachment. The two Rudy Giuliani associates engaged in key abuses — the ouster of the U.S. ambassador to Ukraine, the attempts to force Ukraine’s president to announce investigations into Trump’s political opponents — gained access to Trump by funneling money from a Ukrainian oligarch to the president’s super PAC.

Almost none of that’s true.

Not only did Trump spend far less than his 2016 opponent, Hillary Clinton, but he garnered far less in Super PAC money. Bloomberg:

He didn’t win the money race, but Donald Trump will be the next president of the U.S. In the primaries and general election, he defied conventional wisdom, besting better financed candidates by dominating the air waves for free. Trump also put to use his own cash, as well as the assets and infrastructure of his businesses, in unprecedented fashion. He donated $66 million of his own money, flew across the country in his private jet, and used his resorts to stage campaign events. At the same time, the billionaire was able to draw about $280 million from small donors giving $200 or less. Super-PACs, which can take contributions unlimited in size, were similarly skewed toward his opponent, Hillary Clinton. Ultimately, Trump won the presidency despite having raised less than any major party presidential nominee since John McCain in 2008, the last to accept federal funds to pay for his general election contest.

Clinton and her super-PACs raised a total of $1.2 billion, less than President Barack Obama raised in 2012. Her sophisticated fundraising operation included a small army of wealthy donors who wrote seven-figure checks, hundreds of bundlers who raised $100,000 or more from their own networks, and a small-dollar donor operation modeled on the one used by Obama in 2012. She spent heavily on television advertising and her get-out-the-vote operation, but in the end, her fundraising edge wasn’t enough to overcome Trump’s ability to dominate headlines and the airwaves.

The report has excellent graphical breakdowns but this one is most illustrative:

Trump was sui generis, running a celebrity campaign that relied almost entirely on “earned” media. Almost all of the Super-PAC money went to his Democratic opponent. And, while she easily won the most votes, she failed to win the necessary Electoral College votes.

Now, that doesn’t mean that Trump wasn’t influenced by wealthy donors. As the NYT reported during the transition,

Some of his high-level nominees, who include millionaires and billionaires, made large donations to his campaign or to “super PACs” supporting him. For example, Linda McMahon, the professional wrestling mogul whom Mr. Trump has chosen to lead the Small Business Administration, donated $7 million to two pro-Trump groups. The records also show that the men he intends to nominate for his secretaries of Labor, Treasury and Commerce all made six-figure contributions to his campaign, the Republican National Committee or another group supporting him.

Still, Mr. Trump’s campaign also benefited from a far-reaching network of ordinary Americans who gave small amounts of money, an illustration of his powerful grass-roots appeal. Sixty-five percent of the amount donors gave directly to his campaign came from people who donated $200 or less.

But, of course, with Trump, it’s just as plausible that he saw these donations as a show of loyalty than that the appointments were a reward for the donations per se.

Beyond the specifics of the 2016 race, though, the fact of the matter is that Citizens United simply didn’t do what its critics claim. As a 2018 essay in left-of-center Vox explains,

The inundation of elections with private cash is not the result of Citizens but rather was facilitated by the 1976 decision Buckley v. Valeo. That case established the legal framework sanctioning billions of dollars of independent private campaign spending. In it, the Court ruled that limits on campaign donations — direct donations to candidates — are constitutional but said it was unconstitutional to limit non-donation expenditures, such as independently funded advertisements.

Such independent spending — which cannot be coordinated with candidates, according to the Court — was protected under the First Amendment as not just speech but political speech. The idea is that money is a necessary instrument for supporting a political candidate, whether it’s paying for yard signs or taking out an ad in the newspaper.
Not unreasonably, the Court ruled that limitations on independent expenditures would constitute limitations on one’s ability to support a candidate through any number of media. Placing a dollar limit on such expenditures would arbitrarily prevent certain kinds of campaign support simply by the fact of how expensive they are.

Our inability to trace campaign donations to their source — the dark money issue — is the result of the lack of federal regulations to make disclosure mandatory. And such regulations are legal; the Court said as much in Citizens, with eight of nine justices agreeing on that point! The only thing standing in the way of transparency is congressional stonewalling. In 2010, Republican senators defeated a disclosure law 59 to 39, which would have made it more difficult for donors to use legal loopholes to hide their identities.

Citizens simply has not had the seismic legal impact that many think. Since Buckley protected money as speech, the only question was whether corporations were legitimate speakers. It may surprise some to hear, but the Court had already answered this question in 1978. In First National Bank of Boston v. Bellotti, the Supreme Court recognized a corporate right to free speech, concluding that the value of speech in the course of political debate does not depend on the identity of the speakerCitizens simply followed the precedent of these two cases.

So when liberals intone that “corporations aren’t people,” thinking they are making a knock-down argument against Citizens, they miss the point. Citizens did not make corporations persons. And corporations do not need to be persons to receive First Amendment protections. Citizens upheld the liberty, provided by Bellotti, of corporations to speak, and they speak under the rules provided by Buckley.

Indeed, a piece in Slate right after Citizens United was issued correctly pointed out that “The Floodgates Were Already Open.”

Citizens United, the fourth in a series of decisions from the Roberts Court that has narrowed or struck down campaign finance regulations, has garnered headlines of shock and awe. But the writing for it has been on the wall since the court’s 2007 decision in FEC v. Wisconsin Right to Life. That case, which interpreted the same provision of the same law as Citizens United, held that corporate and union ads were constitutionally protected so long as they did not explicitly endorse or oppose candidates. The difference now is that corporations and unions can tell you directly who to vote for. In other words, before Citizens United, a corporation or union could sponsor ads with its treasury funds that said “Tell Congressman Smith to stop destroying America.” After Citizens United, they can add at the end “and, by the way, don’t vote for him.”

The same essay pinpointed the actual downside of the ruling, even if it predicted the effects incorrectly:

The political parties as institutions were probably the losers. Their power is now diminished relative to that of outside groups funded (now in unlimited amounts) by corporations and unions. Perhaps this is a good thing: The extreme cohesiveness and polarization of the political parties might be countered by independent, nonparty bases of support that influence candidates. At the same time, and I’d argue more likely, the decision might polarize the parties even further, because independent spenders tend to advocate extreme positions.

It’s true that wealthy donors like the Koch Brothers (until David’s recent passing) and Sheldon Adelson have been giving more money than ever. But that has nothing to do with Citizens United, which was about corporate, not individual, contributions.

Politicians on the left and right have been trying to regulate the money in politics since the Watergate scandal. Because the stakes keep escalating, however, the amount of money keeps skyrocketing. That’s partly because the Supreme Court, going back to Buckley vs Valeo, has understood that the ability to spend money on advertising amounts to speech in the modern era. Mostly, though, it’s because people with money (and that includes organizations funded by small donations) hire smart lawyers who figure out loopholes in the laws and regulations. That’s what gave us PACs, 527s, Super PACs, dark money, and all the rest.

As we’ve been pointing out here for years—including during Stephen Colbert’s amusing odyssey illustrating the absurdity of our election laws and the easy by which they’re bypassed—almost all of the outrages attributed to Citizens United were possible before the ruling. (See, for example, my 2012 posts “Stephen Colbert’s Super PAC Joke’s On Him” and “What Citizens United Changed: Not Much.”) Corporate contributions weren’t a major problem a decade ago and they’re not more of a problem now.

To be clear, I share Milbank’s frustrations:

The consequences? Falling confidence in government, and a growing perception that Washington had become a “swamp” corrupted by political money, fueled Trump’s victory. The Republican Party, weakened by the new dominance of outside money, couldn’t stop Trump’s hostile takeover of the party or the takeover of the congressional GOP ranks by far-right candidates. The new dominance of ideologically extreme outside groups and donors led lawmakers on both sides to give their patrons what they wanted: conflict over collaboration and purity at the cost of paralysis.

But Citizens United had little to do with that. (Milbank’s critiques of other Roberts-era decisions that have allowed Republicans at the state level more latitude in suppressing minority voting have more merit.)

FILED UNDER: *FEATURED, Best of OTB, Law and the Courts, Supreme Court, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. gVOR08 says:

    So if Milbank had replaced “Citizens United” with “Buckley v Valeo and subsequent decisions” we’d have little to disagree with?

    Whatever, we need to find ways to get the money out of politics or small d democracy is doomed.

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  2. James Joyner says:

    @gVOR08:

    “Buckley v Valeo and subsequent decisions” we’d have little to disagree with?

    The whole article hinges on blaming Roberts for the current state of affairs.

    Moreover, the distinction really matters. The Buckley decision was a hot mess from a precedent standpoint because only 8 Justices ruled on the case and they didn’t agree with one another on much, thus issuing a series of concurrences and dissents and no majority opinion. BUT they all agreed that spending money was a vital component of modern elections.

    Buckley certainly had more to do with 2016 than CU, in that it was specifically about the ability of a hyper-wealthy individual to spend on his own campaign. But, aside from the rare Trump, Perot, or Bloomberg, that’s no really the issue in American politics.

    2
  3. Andy says:

    @gVOR08:

    Whatever, we need to find ways to get the money out of politics or small d democracy is doomed.

    I don’t see any practical way to do that.

    So I would do the opposite and remove the limits that can be given to parties and candidates, which could be done with legislation. Secondly, would be disclosure laws so there is transparency. Neither option – as James noted – our politicians have little interest in doing.

    4
  4. MarkedMan says:

    James, I think you are focusing on this too narrowly. However Trump got elected, our system was meant to be self correcting. The real influence from those billionaires is in controlling the senators and house members. This trial is one example of that overwhelming control, but perhaps an even more egregious example is that the a Republicans have completely outsourced the selection of all federal judges to a small, secretive group completely funded by one billionaire. Think about that. Not a single Senator is proposing judges. Every single one is going through a group that is not just unelected, but we don’t even know who the members are or who they allow to sit in on the selection process.

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  5. Daryl and his brother Darryl says:

    Almost none of that’s true. Not only did Trump spend far less than his 2016 opponent, Hillary Clinton, but he garnered far less in Super PAC money.

    But that’s not what Millbank said.
    He said;

    The two Rudy Giuliani associates engaged in key abuses — the ouster of the U.S. ambassador to Ukraine, the attempts to force Ukraine’s president to announce investigations into Trump’s political opponents — gained access to Trump by funneling money from a Ukrainian oligarch to the president’s super PAC.

    Emphasis, mine.
    Also…I refuse to pay the WaPo…so I can only respond to what you copy and clipped.
    Remember…Obama stood in front of Alito and Roberts in a SOTU speech and told them that they had opened the door to foreign money and influence.

    “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.”

    And indeed…Trump is living on Foreign Influence.

    15
  6. Jay L Gischer says:

    For so many, “Citizens United” is a catch phrase that means “millionaires and corporations spending megabucks on politics”. I mean, I think you are correct on the details. I have noted before that campaign funds seems to have a threshold effect: you’re sunk if you have to little, but once you get a certain amount, more of it doesn’t help much.

    Nevertheless, I long for more transparency. I would like to know who funded certain ads I see on YouTube. (Not the one with Bernie in it, though). I would like to know who runs the Federalist Society.

    Also, @Darryl has what seems to be a good point about foreign money.

    9
  7. James Joyner says:

    @MarkedMan:

    The real influence from those billionaires is in controlling the senators and house members.

    Where’s the evidence for that? I think what’s happened is that the parties have faded as institutional players and outside organizations have come to dominate the primary process. But that’s not so much a function of billionaires as the overall polarization of the process.

    Republicans have completely outsourced the selection of all federal judges to a small, secretive group completely funded by one billionaire

    But Democrats haven’t done that, right? I think the Federalist Society is just a function of Republicans having gotten frustrated over the years that, while liberal appointees never go right, conservative appointees often go left. So, they’re starting the vetting process literally with law school to find true believers.

    @Daryl and his brother Darryl:

    The two Rudy Giuliani associates engaged in key abuses — the ouster of the U.S. ambassador to Ukraine, the attempts to force Ukraine’s president to announce investigations into Trump’s political opponents — gained access to Trump by funneling money from a Ukrainian oligarch to the president’s super PAC.

    I honestly see that as a tangential point. Trump is getting his info from the alt-right and Fox. To the extent that there was foreign influence in his campaign, it wasn’t in the form of massive campaign contributions.

    @Jay L Gischer:

    For so many, “Citizens United” is a catch phrase that means “millionaires and corporations spending megabucks on politics”

    I think that’s right. But that long predates CU.

    5
  8. Kathy says:

    The problem with campaign finance regulations, is that, as most regulations, the big money players have little trouble complying, while the smaller players find them onerous and overly expensive.

    so what is the objective? To limit the big money influence, or to allow a more level playing field between big money and small (normal) money?

    3
  9. Daryl and his brother Darryl says:

    @James Joyner:

    To the extent that there was foreign influence in his campaign, it wasn’t in the form of massive campaign contributions.

    You’re right it wasn’t the money…it was the access that it bought them. Which isn’t to say that Putin needed Citizens United to help elect Trump.
    In any case…
    George Conway takes another tack, counter to Millbank.
    https://twitter.com/gtconway3d/status/1220752104639422464

    2
  10. Kurtz says:

    @James Joyner:

    I agree with the thrust of the piece. It wasn’t so much Citizens United as Valeo.

    I disagree with a couple things philosophically, and one particular thing you say:

    That’s partly because the Supreme Court, going back to Buckley vs Valeo, has understood that the ability to spend money on advertising amounts to speech in the modern era.

    I think at the time of the Valeo decision, this was true. The media was a gatekeeper, and ads allowed small amounts of messaging to bypass it. Both were necessary.

    Now, that is decidedly not the case, because candidates can speak directly to voters via social media and their websites. The media still plays a role in attempting to hold candidates accountable for their past decisions and whether their proposals will work among other things.

    But advertising is not necessary, and is in fact a terrible way to introduce complicated policy proposals. It’s just messaging. We now have the informational tools to skip that part.

    Philosphically, I have a problem with equating abstract legal instruments with persons. The simplest test of personhood is whether an entity can be imprisoned or put to death. Corporations fail that test.

    To be clear, this isn’t the only test of personhood, other tests must be built on top of it to ensure it’s not every living thing is considered a legal person. But it is certainly the most logical baseline test.

    The other philosophical disagreement concerns tying economic condition to speech. It directly violates the notion of speech as a natural right. Once a natural right is mediated by a socioeconomic condition, it is no longer a right.
    To be more precise, it creates classes of persons who have more ground to assert their natural right than others.

    Perhaps more controversially, I would argue that this is where Capitalism and juridical concepts built to accept it as a priori, creates tension in the natural rights model. The centrality of incredibly strong property rights conflicts with would i would argue as true natural rights.

    That last claim flows from two things:

    1.) Property rights require administration. Natural rights do not.

    2.) property rights are exclusionary, whereas natural rights are not.

    @Andy:

    Publically funded elections. Interested in what people think about that.

    3
  11. gVOR08 says:

    @James Joyner: I agree that it’s Buckley v Valeo et seq, not Citizens United alone. That agreement implies Milbank’s framing is poor. It’s not Roberts, except as a representative of the judges who have made these decisions.

    I’m a pragmatist. It’s necessary to democracy that we allow dissent. It is not necessary, in fact it seems clearly harmful, to allow unlimited money to buy speech. Sex is largely legal, with restrictions. Buying sex is not. There is a difference.

    I was going to write a longer comment, but others seem to have covered the ground. Would you, James, be OK with transparency as suggested above? I see nothing in the First that grants anonymity.

    5
  12. Kurtz says:

    Hmmm… What happened to my comment. 🙁

  13. DrDaveT says:

    @James Joyner:

    while liberal appointees never go right, conservative appointees often go left.

    In the world of criminal investigations, this is what is referred to as “a clue”.

    9
  14. Kurtz says:

    @Kurtz:

    Nvm. Must have been moderation queue. Maybe because of the reply to more than one comment.

  15. MarkedMan says:

    I find this whole argument frustrating. Republicans have an infinite number of rationalizations about why it is only coincidence they appear to do the bidding of the billionaires. But do all these cases need to be argued singly? The fact is that since McCain Feingold not a single Republican “principle” has ever led them to buck a billionaire. The modern Republican Party does not contain a single senior official that will challenge a billionaire in any way shape or form. If you think I’m wrong, James, show me the counter example.

    This argument is exactly like the endless rationalizations about why Reagan kicked off his campaign in Philadelphia, MS, or senior Republican leaders who survived the Reagan years were all ones who blindly supported Apartheid South Africa at every turn, or why Republicans in Arizona refused to honor MLK day for decades, or why today there is not a single senior Republican official who ever marched for civil rights. The Republican rank and file swallowed whatever rationalization their leaders told them applied in this very specific and unique instance, and spit it back as a talking point. In the real world, we long ago reached the point that absent a single contrawise indicator, rational people should just accept that the Republican Party is a racist party in thrall to billionaires.

    13
  16. gVOR08 says:

    @James Joyner:

    I think the Federalist Society is just a function of Republicans having gotten frustrated over the years that, while liberal appointees never go right, conservative appointees often go left.

    I will once again quote Jane Meyer, Dark Money.

    The (Koch) brothers realized that their brand of politics didn’t sell at the ballot box. Charles Koch became openly scornful of conventional politics. “It tends to be a nasty, corrupting business,” he told a reporter at the time. “I’m interested in advancing libertarian ideas.” … But during the next three decades, they contributed well over $100 million, much of it undisclosed, to dozens of seemingly independent organizations aimed at advancing their radical ideas. Their front groups demonized the American government, castingit as the enemy rather than the democratic representative of its citizens. They defined liberty as its absence, and the unfettered accumulation of enormous private wealth as America’s purpose. Cumulatively, the many-tentacled ideological machine they built came to be known as the Kochtopus.

    The Kochs were not alone. As they sought ways to steer American politics hard to the right without having to win the popular vote, they got valuable reinforcement from a small cadre of like-minded wealthy conservative families who were harnessing their own corporate fortunes toward the same end. Philanthropy, with its guarantees of anonymity, became their chosen instrument. But their goal was patently political: to undo not just Lyndon Johnson’s Great Society and Franklin Roosevelt’s New Deal but Teddy Roosevelt’s Progressive Era, too.

    That’s where the Federalist Society came from.

    11
  17. Michael Reynolds says:

    What if Citizens United had been decided the other way? Would Congress then not be at least theoretically able to impose campaign finance limits?

    6
  18. Moosebreath says:

    @James Joyner:

    “Republicans having gotten frustrated over the years that, while liberal appointees never go right, conservative appointees often go left.”

    Hugo Black, Felix Frankfurter and Byron White (just among Supreme Court justices) say hi.

    3
  19. grumpy realist says:

    If $$$ == speech, why do we have laws against bribery?

    (Yeah, I know that Trump is trying to get rid of those laws as well.)

    7
  20. Just nutha ignint cracker says:

    @Daryl and his brother Darryl: What’s interesting to me about Conway’s comment is that, with the reference to the Voting Rights Act, his statement could comfortably be rephrased as

    If a bunch of unelected liberal judges hadn’t decided that nCLANNGGG votes should count, we wouldn’t be in this mess now.

    1
  21. Just nutha ignint cracker says:

    @Moosebreath: You’ll need to elaborate. The comment seems to imply that the above judges “went right”–or that I have no skill at inference. Either way, the comment seems unclear to me. If you were Guarneri, I’d simply assume that you had no point, but you’re not, so enlighten me.

  22. James Joyner says:

    @Kurtz:

    . . .because candidates can speak directly to voters via social media and their websites. The media still plays a role in attempting to hold candidates accountable for their past decisions and whether their proposals will work among other things.

    But advertising is not necessary, and is in fact a terrible way to introduce complicated policy proposals. It’s just messaging. We now have the informational tools to skip that part.

    Twitter isn’t the real world. The vast majority of voters still get their information from television.

    It may be true that advertising in the sense we understood it in 1976 (when Valeo came down) or even 1996 is less effective than it used to be because it’s easier to tune out than it once was. But it still requires massive amounts of money to conduct messaging. Indeed, it’s more expensive than ever—again, unless you’re a Donald Trump—because you have to micro-target niche groups rather than simply buy space during M*A*S*H or Happy Days.

    3
  23. James Joyner says:

    @Moosebreath:

    Hugo Black, Felix Frankfurter and Byron White (just among Supreme Court justices) say hi.

    The first two were appointed by FDR, the third by JFK—that’s going back a long way! But they were all liberal justices by any reasonable measure, especially considering the prevailing ideology of the time when they were appointed. (And, yes, Supreme Court justices are the only ones that anyone outside the legal progession pays much attention to.)

  24. Kurtz says:

    @James Joyner:

    I think the Federalist Society is just a function of Republicans having gotten frustrated over the years that, while liberal appointees never go right, conservative appointees often go left. So, they’re starting the vetting process literally with law school to find true believers.

    Wouldn’t this have more to do with social trends than anything else? A free society evolves and if political institutions do not keep, up there is a disconnect. This is one of, if not the most important reason, that the judiciary is supposed to be insulated from politics beyond the appointment process. A current example is in order here.

    Excluding his political leanings, Roberts is a good example of someone who values the legitimacy of the Court. If the Court continues to uphold a political process that has become stagnant in relation to society, it risks losing legitimacy in the same manner that the political branches have.

    Of course this cuts both ways. It’s possible, that Roberts would have felt that Brown v. Board of Educationrisked the legitimacy of the Court. That, ultimately may have led him to conclude that desegregation of public schools was inevitable, but the Court forcing it risked rending the societal fabric.

    I say all this, because the very worst way to evaluate a potential jurist’s appointment is ideaologically. In this way, despite their claims otherwise, the Federalist Society is contravening Consitutional principles by evaluating federal judges in political terms rather than as impartial jurists.

    As a parting shot, an Originalist or Strict Constructionist view is a political leaning, not a judicial philosophy.

    4
  25. dazedandconfused says:

    Relates to your thread about what ruined politics IMO.

    I tend to agree, Citizens is not responsible for ruining politics. It’s the advent of for-profit news and the ease with which people can tune out opposite views, even whole subjects. News is boring!
    There are now a billion items which can be deeply delved into from our phones! The intellectuals who ponder whether they are approaching it wrong…are they aware about the only people besides their peers who know they exist are political junkies?

    3
  26. Kit says:

    @Kurtz:

    The other philosophical disagreement concerns tying economic condition to speech. It directly violates the notion of speech as a natural right. Once a natural right is mediated by a socioeconomic condition, it is no longer a right.
    To be more precise, it creates classes of persons who have more ground to assert their natural right than others.

    Can this really be true? There’s the Second Amendment, where money allows one to buy more guns. But even granting that we have perverted our understanding on that score, what about the First and the right to assembly? Without money, I’m rather limited in how I can exercise that right. And for that matter, what about the rights to life, liberty and the pursuit of happiness? Money helps buy more of all three. Maybe the 8th, too, and excessive bail, although perhaps more in practice than in theory.

    More fundamentally, I share (?) the concern that the aims, at least as I see them, of the right to free speech have been undermined by changes in the concentration of power outside of the government, and advances in technology.

  27. Moosebreath says:

    @Just nutha ignint cracker:

    “The comment seems to imply that the above judges “went right””

    Correct.

    @James Joyner:

    “But they were all liberal justices by any reasonable measure, especially considering the prevailing ideology of the time when they were appointed.”

    Not really. Frankfurter certainly was on the right wing of the court, including insisting upon the “all deliberate speed” line in Brown v. Board of Ed. which led to Southern school districts slow-walking desegregation for over a decade, as well as dissenting in most of the cases applying the Bill of Rights to the states. White was, among other things, a dissenter in Roe v. Wade (and later abortion cases) and Bowers v. Hardwick (upholding anti-sodomy laws in the 1980’s).

    Black is a harder case, as he was all over the spectrum. He may have been the left-most of the Court on First Amendment issues, while at the same time while being the right-most on due process issues.

  28. al Ameda says:

    What bothers me as much as the eneral Citizens United (CU) decision that money is speech, is the current opposition to accountability and transparency.

    What I want is complete transparency in accounting for and disclosing political contributions to a federal election campaign. These are some of my thoughts/ideas:

    Note: I’m assuming that CU isn’t going away.
    [1] All political contributions must be reported (within 48 hours of receipt) on a Federal Website.
    [2] Invidual contributions that are bundled into a PAC must be disclosed by individual or company. That is, those PACS must list who the individual contributors to their pPAC are by name and amount.
    [3] No contributions may be made in the final 72 hours prior to Election Day.

    We should know where the money is coming from, especially in the absence of limitations on the amounts that may be contributed to a campaign.

    3
  29. Moosebreath says:

    @Moosebreath:

    Sorry — a few words got deleted in my post. It should say “and wrote the majority opinion in Bowers v. Hardwick”

  30. James Joyner says:

    @gVOR08:

    Would you, James, be OK with transparency as suggested above?

    I’m not seeing much in the way of proposals above. My longstanding position has been that requiring essentially-real-time disclosure of expenditures/donations was not only reasonable but proper. I’m less sure of that in the current political climate, given that it’s much easier to engineer targeted harassment campaigns.

    @Kurtz:

    As a parting shot, an Originalist or Strict Constructionist view is a political leaning, not a judicial philosophy.

    It’s been that way in recent decades, because progressives find it hard to get their desired outcome through a textual, much less originalist, reading of the Constitution. But it was the philosophy of many of FDR’s appointees, including the above-mentioned Hugo Black.

    @Moosebreath:

    Frankfurter certainly was on the right wing of the court, including insisting upon the “all deliberate speed” line in Brown v. Board of Ed.

    Sure. But he was appointed in 1939! FDR and the Democrats of the era would have considered his reasoning perfectly reasonable. I’m sure there are counterexamples that I’m not thinking of but, generally speaking, justices appointed by liberal presidents only become “conservative” because the Overton window generally shifts left over time. By contrast, lots of justices appointed by conservative presidents become more liberal over time–precisely because the window shifts and prevailing intellectual wisdom shifts.

    l@Michael Reynolds:

    What if Citizens United had been decided the other way? Would Congress then not be at least theoretically able to impose campaign finance limits?

    I don’t think CU really mattered much in that context; CU merely extended previous precedents on corporate contributions. By 2010, we had had 34 years of opinions limiting Congress’ power to regulate political spending.

  31. Moosebreath says:

    @James Joyner:

    “But he was appointed in 1939! FDR and the Democrats of the era would have considered his reasoning perfectly reasonable.”

    And yet in a Court entirely comprised of FDR and Truman nominees, Frankfurter and his protege Reed were the only ones who wanted to go slow on desegregation.

    “I’m sure there are counterexamples that I’m not thinking of but, generally speaking, justices appointed by liberal presidents only become “conservative” because the Overton window generally shifts left over time.”

    You are clearly dealing with a different Overton Window than I am, as the one for the Supreme Court has been shifting heavily to the right for the last few decades (and likely to move even further right in the next few years).

    “By contrast, lots of justices appointed by conservative presidents become more liberal over time–precisely because the window shifts and prevailing intellectual wisdom shifts.”

    I think it’s about the same number (I’d agree this applies to Warren, Blackmun and Souter. Brennan was always liberal and was only appointed to the Supreme Court because Eisenhower wanted a Catholic on the eve of the 1956 election).

  32. Just nutha ignint cracker says:

    @Moosebreath: “Correct” didn’t fill me in adequately, but the balance of the comment thread between you and Dr. Joyner did. I’m not sure I wouldn’t count your points as cherry picking, but they did explain and defend your statement. Getting it was all I was interested in. Arguing the point, meh… hard pass.

  33. Moosebreath says:

    @Just nutha ignint cracker:

    ““Correct” didn’t fill me in adequately”

    Not sure why, since I quoted half your sentence and agreed with it. Your full sentence was “The comment seems to imply that the above judges “went right”–or that I have no skill at inference.” If I were taking the opposite position, I would have agreed with the second half of your sentence.

  34. Kurtz says:

    @Kit:

    Yes, it is true. In a natural rights model, the amendments are just codifications of rights that exist independently of any body of law.

    The 2A is a little different (because, of course it is 😉 ) from the others in that it is a rather specific codification of the right of self-defense.

    Keep in mind, this is why several of the amendments are written as restrictions on Congress.

    Also keep in mind that for the Founders, these were all specific to the Federal Government, not all governments. This may at first seem illogical, but they considered the States to effectively represent the people, whereas the FG was a far off entity that had the potential to abuse its power. The States relative proximity to everyday life and prerogative in setting up a government was considered to be a bulwark against arbitrary exercise of power without consent.

    The freedom(s) of association and assembly… It’s imperative to remember the difference in eras here. People typically stayed local. Politics were local. Modern life has increased the reliance on the broader financial system. But that is a relatively modern phenomenon.

    Life, Liberty and the Pursuit of Happiness were more a statement of purpose than anything else in terms of the Constitution. Anyway, they are not specific enough to be termed natural rights.

  35. gVOR08 says:

    @Kurtz: Sorry, can’t let your 2A statement stand without clarifying that for most of our history it has been understood as a collective right of self defense.

  36. Kurtz says:

    It’s been that way in recent decades, because progressives find it hard to get their desired outcome through a textual, much less originalist, reading of the Constitution. But it was the philosophy of many of FDR’s appointees, including the above-mentioned Hugo Black.

    Not that I expect a line-by-line refutation from you. It’s much appreciated that you participate in comments at all. So thank you.

    But this really doesn’t answer the social forces component of my argument. Shortly, that jurists on the Right move Left more often than vice versa because society as a whole tends to move Left and jurists typically make landmark decisions when political bodies do not move in sync with the broader culture.

    Your specific claim about strict constructionism is partially true. But the meaning of that phrase has been imbued differently with time. Jeffersonians and Hamiltonians (loose constructionists) would likely wretch at the way their terms were used now.

    But even then, you’re being more than a little disingenuous here. An originalist reading of the Constitution, after all, would, whether it be the original intent of the Founders or the plain meaning understood by a contemporary ordinary person, would restrict rights to a certain class: propertied white men.

    That last point is why Scalia was always careful to define his style of textualism as “reasonable,” because, with due respect to him (read “due respect” as you wish,) he carried himself as the arbitor of reasonability.

  37. Kurtz says:

    @gVOR08:

    I agree with you. You may have missed my clarification post in that thread about the proper basis of the collective rights model. It doesn’t rest on people vs persons, it rests on the militia language. In jurisprudence, “people” has typically described a class of people who have standing to assert individual rights.

    Again, I have no love for the Heller decision. The individual rights model of the 2A was a rather egregious case of, dare I say it, judicial activism.

    The 2A is peculiar in the sense that it is a specific codification of a broader natural right.

  38. James Joyner says:

    @Kurtz:

    An originalist reading of the Constitution, after all, would, whether it be the original intent of the Founders or the plain meaning understood by a contemporary ordinary person, would restrict rights to a certain class: propertied white men.

    An originalist reading of the original Constitution, yes. But we’ve amended the document multiple times to expand rights to all persons, regardless of race, creed, or national origin. And we’ve extended certain rights, including, suffrage, to women specifically.

    2
  39. Kurtz says:

    @James Joyner:

    Sure. But keep in mind that my argument was simply that originalism and textualism are not so much a theories of how to objectively read the Constitution as much as it is reflective of political preferences. And that this makes them a poor fit for a dispassionate jurist.

    It’s an intractable epistemological problem. It’s impossible to understand someone else’s view thouroughly enough, even when that person has had similar experiences in the same era. A Jurist’s modern viewpoint corrupts this process to the point that it more akin to divination than careful deliberation.