'Citizens United was a shot across the bow'
Bruce 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.
May 11, 2010; 5:15 PM ET
Categories: Interviews , Legal
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