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'Citizens United was a shot across the bow'

Ackerman_Bruce.jpgBruce Ackerman is Sterling Professor of Law and Political Science at Yale, and an expert on election law. I called him earlier today to talk about how Citizens United should affect our understanding of the Supreme Court, and of Elena Kagan. A lightly edited transcript of our conversation follows.

EK: The shadow of the Citizens United decision hangs over this Supreme Court nomination process. But I've been wondering if that makes sense: Did that decision pretty much settle the campaign finance question before the court? Or did it make it into a live issue?

BA: I fully expect a strong pushback from the Obama administration in Congress. I think it'd be highly desirable and, more importantly, it will happen. It will be educational for the court to encounter sharp, clear resistance to its decision. Several of the dimensions of the response legislation [that Congress is developing] will force the court to think hard about what Citizens United really means.

Most importantly, I think, is the provision in the bill that bars campaign contributions from any firm that does more than $50,000 of business with the government is very consequential. A very substantial percentage of the Fortune 500 does more than $50,000 of business with the government. It happens to be the consequence in a world of big government that almost all large firms engage in business with the government. This provision will force the court to think hard about the classic rationale for traditional campaign finance reform, which is to say corruption, and the appearance of corruption. It's one thing to have a general statute barring all corporations from spending freely. It's another one to have a statute focused on what is obviously a problem, which is pay-for-play. This will force the court to decide if they're really saying pay-for-play and corruption are not a serious problem? And if not, then what are they saying?

And then there's the fundamental autonomy of politics. Should American politics be relatively autonomous from economic power?

EK: There's been some debate in legal blogs as to whether Elena Kagan would've voted with the majority on Citizens United, or whether we just don't have the information to say. Do you have a view on that?

BA: Well, I don't know. I would be very surprised if she would vote with the majority. She is, on most of these matters, in the mainstream of legal opinion, and I think that decision took a lot of people by surprise. It was quite a striking decision attacking settled practice. But certainly, in this and in many other cases, she hasn't spoken to it. I know her as a person and she is certainly a person with her feet on the ground and who is alive to what I'd call real-world constitutionalism. But I don't think we have a smoking gun.

EK: What is "real-world constitutionalism?"


BA: It's an understanding of the practical meaning of constitutional principles in the real world. This is the core of Brown v. Board of Education, which did not strike down all forms of "separate but equal." Rather, it said that in the real world, when you have all black kids in one school and all white kids in another school, this creates feelings of inferiority. That was the basis of the decision. The real meaning of equality as understood by people in the world. And I think [Kagan] has a good sense of the practical meaning of constitutional issues. I think she understands that a speaker like British Petroleum is not a speaker like your or me. To believe otherwise takes a real exercise of the judicial mind at its worst.

EK: In recent years, I think a lot of us have been conditioned to think of the Supreme Court as a forum for arguments over abortion, affirmative action and, occasionally, civil liberties. Citizens United thus caught a lot of people by surprise. If you were looking to evaluate a justice for the next 20 years of the court rather than the last 20 years of the court, what would you be looking at?

BA: For sure, the status of undocumented aliens is going to be much more salient in American law. Everyone hopes some president and congress takes on this question seriously, but when George W. Bush and the Democrats couldn't reach an agreement, it was not a good sign. So we're going to have 10 or 15 million people or more who'll find themselves in a position increasingly like black people before 1954. That will be a terribly serious issue, and the court will have to decide how to respond.

This one is maybe less likely, but the fiscal crisis of the American state may well come before the court. What happens when promised benefits are cut back dramatically? Will the court protect the weak, or not? At the moment, one's answer would be not.

EK: Another legal observer told me that the immediate question about for the court is whether Citizens United marks the beginning of a period where the court starts inserting itself forcefully between Congress and the country. Do you think that's a real danger, or legal hyperbole?

BA: Here we have something we can call the New Deal/civil rights inheritance. And here, the so-called liberals on the court are really conservatives. They are protecting this inheritance. The so-called conservatives on the court are trying to assault that inheritance.

Go back before the New Deal and you see a court with a dramatically more limited conception of the scope of the federal government on the one hand, and a conception of human freedom based on property rights rather than individual freedom, on the other. And it's clear that Citizens United was a shot across the bow. But whether the post-New Deal regime will be preserved or assaulted, you need to look at who the next president will be. And Elena Kagan, in this context, is a true conservative, in that she basically believes in the New Deal principles that the federal government has broad powers of regulation, and that the government can tax people to contribute to a universal health-care system. That shouldn't give her too much trouble.

By Ezra Klein  |  May 11, 2010; 5:15 PM ET
Categories:  Interviews , Legal  
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Comments

So, a Supreme Court nominee who "basically believes in the New Deal principles" is favorable over a nominee who basically believes in Constitutional principles?

Just wondering.

Posted by: rmgregory | May 11, 2010 5:59 PM | Report abuse

@ rmgregory : I want a justice that believes that some things have changed since 1787 and that our understanding of the constitution and its provisions should reflect these changes.

Posted by: srw3 | May 11, 2010 6:33 PM | Report abuse

"Congress shall make no law ..... abridging the freedom of speech, or of the press". Citizens United is a decision that reaffirms the the primacy of the freedom of speech clause of the First Amendment. Rules against political speech are a violation of the First Amendment. You should read the decision before you fall for the bs from Yale.

I also note that no mention is made of controlling the speech of unions (which Citiizens United protects as well) which have as much or more economic impact as corporations - see California's budget problems.

CK

Posted by: ckessler55943 | May 11, 2010 6:56 PM | Report abuse

ckessler,

Corporations are abstract legal entities, that are purposely divorced from the human beings who own and operate them. The only duty of a corporation is to generate profits for its shareholders.

Corporations are not citizens and they have no right to vote in elections. They previously have been allowed to influence the elections that we human beings conduct among ourselves via their own financial contributions, subject to some sensible limitations of the same sort that we human beings place upon our own campaign spending.

Since corporations are not human beings, and since they do not have a right to vote in an election, it is a little bit absurd to take the position that not-voting, non-human, profit-motivated entities enjoy an absolute "right" to influence the outcome of elections by the infusion of unlimited amounts of money, and that to do otherwise somehow intereferes with a corporation's right of "speech."

It is especially disturbing to do so by upending an entire body of legislation and related court decisions that stretch back for many decades.

And it is even more disturbing for the five Justices to do all of this gratuitously, when neither party to the case had argued that the restriction was unconstitutional.

If you are a fan of Citizens United, you surrender any future possibility of complaining about "judicial activism" without making a complete fool of yourself.

You're correct, the decision also removes all restrictions on labor unions, and that is equally absurd.

Elections are supposed to put in place a government "by the people," not "by corporations who shall spend whatever it takes to ensure the outcome that will result in the largest profits."

Posted by: Patrick_M | May 11, 2010 8:20 PM | Report abuse

ckessler55943: "I also note that no mention is made of controlling the speech of unions (which Citiizens United protects as well) which have as much or more economic impact as corporations"

First, the issue of union speech wasn't before the Court in Citizens United, so it shouldn't be surprising that no mention is made in discussing the case. I have no problem applying the same principles to union speech as to corporate speech.

Second, it's my understanding that corporate political expenditures outweigh union expenditures (I've heard by something like 10 to 1, though I can't find a cite online). There may be individual unions that spend considerable funds, but there are a lot more corporations than unions and some of them have a lot more money. No union could match Exxon's potential for spending money on politics.

Posted by: dasimon | May 11, 2010 8:30 PM | Report abuse

" And Elena Kagan, in this context, is a true conservative, in that she basically believes in the New Deal principles that the federal government has broad powers of regulation, and that the government can tax people to contribute to a universal health-care system. That shouldn't give her too much trouble."

If Mr. Ackerman is willing to put money on this, I'd be delighted to take his bet.

Posted by: Mary42 | May 11, 2010 8:32 PM | Report abuse

"I want a justice that believes that some things have changed since 1787 and that our understanding of the constitution and its provisions should reflect these changes."

As determined by who? The closeted, can't "admit" her own values Elena Kagan? No thanks.

Sorry kids. We've already got two political branches. The judiciary is not the place to play these games...

Posted by: Mary42 | May 11, 2010 8:34 PM | Report abuse

in this context, is a true conservative, in that she basically believes in the New Deal principles that the federal government has broad powers of regulation, and that the government can tax people to contribute to a universal health-care system.

willing to sacrifice individual rights (property rights) forced taxation to help out the greater good ... what a slippery slope.
you are your brother's keeper by force not volition.

Posted by: AmericanSpirit | May 11, 2010 9:06 PM | Report abuse

Before the New Deal it was all about property rights. That meant child labor and 14 hour days. Francis Perkins ended that.

Posted by: lukelea | May 11, 2010 9:16 PM | Report abuse

"you are your brother's keeper by force not volition."


the people who run the private sector of our economy, and many of the people in this world.....do not wish to be your keeper, or your faithful and loving steward, by volition.
by volition, they will try to get you to sign forms waiving your legal rights in the oil spill, through intimidation.....or not care if by unfortunate luck, you cannot get health insurance....or if you are losing your home, because you cannot find work.
these people, and many of them, are the gatekeepers of our society, must be forced to be a kind keeper or steward....or else millions could be ill and starving, and they will not see them in the street.
if everyone were compassionate and kind, we wouldnt need safety nets.
but that will probably never be the case. and so we need to protect the weaker links, and keep as many as possible, safe and connected in the chain.

Posted by: jkaren | May 11, 2010 10:13 PM | Report abuse

AmericanSpirit: "willing to sacrifice individual rights (property rights) forced taxation to help out the greater good ... what a slippery slope.
you are your brother's keeper by force not volition."

If that's the philosophy, then we need to get rid of public education as soon as possible...no vouchers, even. If you can't afford to send your kid to school, you're on your own because we can't tolerate forced taxation to help out the greater good. Same for fire and police protection. Or building roads and other infrastructure.

Can we please move past the talking points and address real world issues?

Posted by: dasimon | May 12, 2010 2:04 AM | Report abuse

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