Retired Justice John Paul Stevens, fresh from receiving the Presidential Medal of Freedom on Tuesday, said he expects the court has had second thoughts about parts of the decision, which struck down limits on corporate spending in elections, according to the Associated Press.We did a break down on Citizens United HERE when it first came out. The long and short of it is this: in 2010, the 4 conservative Justices on the Supreme Court, joined by the "swing-voter" Justice Kennedy, decided that (i) corporations have a First Amendment right to free speech and (ii) that freedom of speech includes the right to spend unlimited money in political elections. What these geniuses forgot was that not all corporations are born in the U.S.A. Stated differently, under Citizens United, a foreign corporation that is formed in, say, Pakistan, is free to spend just as much money influencing our Presidential election as Wal-Mart. You guys didn't think this one through too well, did you?
Justice Stevens, speaking at the University of Arkansas Clinton School of Public Service, challenged the justices to explain how President Obama’s assertion that the Citizens United decision could lead to foreign entities bankrolling American elections was “not true,” as Justice Samuel Alito famously expressed at the 2010 State of the Union address.
Justice Stevens mentioned two cases that came after Citizens United with which it must be reconciled. In Holder v. Humanitarian Law Project, the court upheld a law which made it a crime to provide material support in the form of speech to groups said to engage in terrorism. He indicated that this demonstrated the court won’t treat speech by terrorist groups the same as ordinary speech. The other case, Bluman v. Federal Election Commission, affirmed in summary fashion a decision upholding restrictions on campaign spending by foreigners, the New York Times reported.
As Law Blog noted, the Montana Supreme Court held that the Citizens United decision didn’t apply to a state law that blocked certain political speech by corporations, a decision which led to the U.S. Supreme Court’s blocking Montana from enforcing its law and set up the chance for the court to revisit the controversial decision.
“I think it is likely that when the court begins to spell out which categories of non-voters should receive the same protections as the not-for-profit Citizens United advocacy group, it will not only exclude terrorist organizations and foreign agents, but also all corporations owned or controlled by non-citizens, and possibly even those in which non-citizens have a substantial interest,” Justice Stevens said.
Even if the Court, in a later decision, narrows the scope of its holding in Citizens United to only allow U.S. corporations to spend freely in elections, that will do nothing to prevent a foreign corporation from either acquiring or establishing its own corporate subsidiaries on U.S. soil. In other words, in order for us to truly be free from this curse, Citizens United must die.
1. What do you make of Stevens' criticisms?
2. Have you noticed the Super PAC activity where you live?
3. Will the Supreme Court walk back its position in a future case?
4. Should we pass a Constitutional Amendment overruling Citizens United? Can we?