Precedent Quashed

This has been a very curious week in politics. A Republican, Scott Brown, wins a United States Senate seat in Massachusetts, thereby reducing the Democratic majority in that chamber to 18 seats. Eighteen seats. And Rush Limbaugh's argument? the Democrats are "arrogant" even to consider proceeding with health care reform, in a nation with over 30 million legal citizens uninsured.

But curious is exceeded by ironic. The real arrogance lies with five members of the United States Supreme Court.

Stare decisis, they call it, "to stand by that which is decided." And at his confirmation hearing in 2005, then-Judge Roberts, righteously compared himself to an umpire in that

Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.

As Richard Hasen explained in Slate

The court has long adhered to a doctrine of "constitutional avoidance," by which it avoids deciding tough constitutional questions when there is a plausible way to make a narrower ruling based on a plain old statute. That's what the court did in last term's voting-rights case—in fact, going so far as to adopt an implausible statutory interpretation to avoid overturning a crown jewel of the civil rights movement.

In that decision, Northwest Austin Municipal Utility District Number One, Chief Justice Roberts, writing for the Court, noted "Our usual practice is to avoid the unnecessary resolution of constitutional questions."

But that was then, and this is now. Citizens United is a nonprofit corporation which in January 2008 released in theatres and on DVD a 90-minute disparaging documenary entitled Hillary: The Movie. By statute, it was considered an "electioneering communication," one which refers to a candidate for Federal office within 30 days of a primary or 60 days of a general election. The Federal Elections Commission clarified the expression as one which would be "publicly distributed."

The film, and the three short ads which Citizens United had produced to publicize it, apparently ran afoul of the statutory ban on corporate-funded independent expenditures. Consequently, the corporation sought relief against the FEC, arguing that the the Bipartisan Campaign Reform Act was unconstitutional as applied to the movie and the ads.

Citizens United lost in District Court, which denied a preliminary injunction and granted declaratory relief for the FEC. The Supreme Court at the end of the last term entertained oral arguments in which Citizens United argued merely that Austin v. Michigan Chamber of Commerce, which upheld limits on corporate spending in candidate elections, should be overturned.

But the activist, maximalist Roberts-led Court wanted to do more, and it scheduled for September another round of arguments to reconsider the Austin decision and McConnell vs. Federal Election Commission. At the time, it was widely assumed that the hundred year old legacy (Tillman Act, 1907) of campaign finance reform would be nearly obliterated, and the Court on Wednesday unsurprisingly struck down Austin, most of the BCRA (McCain-Feingold), and part of McConnell.

It's not as if the Court needed to make such a sweeping decision. The goal of Citizens United was much more modest, and there was a time- say, until a couple of days ago- when conservatives claimed that those elitist liberals wanted to legislate while they were strict constructionalists, wanting merely to interpret the intent of the Founding Fathers.

That has turned out to be as empty a claim as Roberts assertion that he saw himself and the Court as mere impartial arbiters.

In his dissent, Justice Stevens explained

The Court points to no intervening change in circumstances that warrants revisiting Austin. Certainly nothing relevant has changed since we decided WRTL two Terms ago. And the Court gives no reason to think that Austin and McConnell are unworkable.

In fact, no one has argued to us that Austin’s rule has proved impracticable, and not a single for-profit corporation, union, or State has asked us to overrule it. Quite to the contrary, leading groups representing the business community, organized labor, and the nonprofit sector, together with more than half of the States, urge that we preserve Austin.

Victories by the powerful and well-connected are not unusual and if conservatives couldn't get it done by the people's representatives in Congress or an elected chief executive, they would get it done by five unelected, politically-motivated jurists.