Supreme Court to Consider Citizens United Case Next Month, Amicus Briefs Due Today: An Historic Moment for Our Democracy and the Supreme Court, Part 1

July 31, 2009

WASHINGTON, July 31 /PRNewswire-USNewswire/ -- On September 9, 2009, the Supreme Court will hear oral argument in the case of Citizens United v. Federal Election Commission. The parties filed briefs in the case last week and amicus briefs were required to be filed by today.

"At stake for the country in the Citizens United case is whether the sixty-year-old ban on corporate expenditures to directly influence federal elections will be declared unconstitutional, along with similar corporate bans in many states," according to Democracy 21 President Fred Wertheimer. (The federal ban also exists for labor unions, although it is not directly at issue in this case.)

"The Citizens United case represents an historic moment for our democracy and for the Supreme Court," Wertheimer said.

Wertheimer is one of the attorneys on an amicus brief filed by the Campaign Legal Center, Democracy 21 and five other groups in support of the ban. (See below for a list of fourteen amicus briefs filed in support of the constitutionality of the corporate expenditure ban. These amicus briefs, along with the briefs filed by the parties, will be available on the Democracy 21 web site at www.democracy21.org.)

Stakes Involved in the Case

"If the Supreme Court declares the corporate expenditure ban unconstitutional, it will unleash the immense aggregate wealth of corporations in America to flood and overwhelm federal campaigns, with disastrous consequences for the country and our electoral system," Wertheimer said.

"Such a decision would open the door to corporations gaining enormous undue influence over the decisions made by federal officeholders, based on the extraordinary amounts of money corporations would be able to spend to defeat or elect federal candidates," Wertheimer stated.

According to an Internal Revenue Service estimate in 2005, the total net worth of U.S. corporations was $23.5 trillion and their post-tax profits were nearly $1 trillion.

"Huge corporate expenditures in campaigns would have the capacity to exercise powerful corrupting influences over government policy decisions. They would also have the ability to drown out and overwhelm the voices of citizens," Wertheimer said.

Unlimited corporate spending to support or oppose federal candidates could have a huge, if not dispositive, effect on the outcome of House and Senate races.

"If a corporation spent $5 million or $10 million or more to support a member of Congress who did the corporation's bidding, or to oppose a member of Congress who refused to abide by the corporation's wishes, this could easily be the determinative factor in a congressional election," Wertheimer stated.

"Even the threat of enormous campaign spending by a corporation could dramatically increase its influence on legislation with members of Congress - even if the threat was never explicitly voiced.

As The New York Times aptly noted in a recent editorial (July 5, 2009), overturning the ban on corporate expenditures would be "a disaster for democracy."

The ban on corporate expenditures in federal campaigns was upheld by the Supreme Court nearly 20 years ago in the Austin case (1990) and reaffirmed in the McConnell case in 2003, after being cited approvingly by the Court in earlier cases.

Both the Austin and McConnell decisions were cited and relied on just two years ago in a decision written by Chief Justice John Roberts in the Wisconsin Right to Life case.

The effort to keep corporate funds out of campaigns dates back more than a century to 1907 when Congress banned corporations from making contributions to federal candidates. The ban on corporate contributions was extended in 1947 to prohibit corporate expenditures in federal campaigns. Similar restrictions were enacted in 1947 for labor unions.

These longstanding restrictions are based on a fundamental democratic principle: individuals elect our representatives and individuals should provide the private financing for federal elections, not corporations or other artificial entities.

Core Judicial Principles

"Also at stake in the Citizens United case is whether the Supreme Court is prepared to issue a radical decision that would ignore core judicial principles that are applicable to this case," according to Wertheimer.

"These longstanding core principles include respect for and deference to past precedents, or stare decisis, and avoiding decisions on broad constitutional grounds when lesser grounds are available to decide the case, or constitutional avoidance," Wertheimer stated.

Here, the Supreme Court has already decided that the ban on corporate expenditures is constitutional. It did so in its 1990 decision in the Austin case, and reaffirmed that decision in the McConnell case in 2003.

The Court has often said that overruling a precedent is an extraordinary action that requires "special circumstances" - such as where a decision proves to be unworkable, or where the factual basis for the decision has changed or ended up to be unfounded, or where recent decisions have left the precedent as an abandoned doctrine.

No "special circumstances" exist in the Citizens United case that would justify overturning past precedent. In these circumstances, overruling Austin and McConnell would be contrary to the fundamental principle that the Court should respect its precedents. It would also deeply disturb settled expectations about the role of corporations in the political process that have been relied on by Congress and the states.

Similarly, it is a longstanding principle that the Court will not reach out to decide constitutional questions that are not necessary to the resolution of a case. Here, Citizens United did not even ask the lower court to rule on the constitutionality of the ban on corporate expenditures.

Instead, it presented a variety of narrower grounds for deciding the case in its favor - such as whether the prohibition on "electioneering communications" by a corporation applies to a non-profit like Citizens United and whether it applies to a movie distributed by on-demand cablecasting.

Under the prudential principle of "constitutional avoidance," if the Court were to rule for Citizens United, it should not reach for broad constitutional grounds to do by adopting a sweeping ruling to overturn Austin and McConnell, when there are narrower grounds available to decide the case.

Court Broadens Case

The Citizens United case was originally argued on March 24, 2009 before the Supreme Court and focused on a narrow question: whether Citizens United, a nonprofit corporation, could constitutionally be prohibited from paying for a particular communication that it wished to make.

On June 29, 2009, its last scheduled day for the term, the Court issued an order requiring further briefing and additional oral argument in the case on a much broader and far reaching question: whether the Austin decision should be overturned and the ban on corporate expenditures in federal campaigns declared unconstitutional.

Washington Post columnist E.J. Dionne has described the Supreme Court's expansion of the case as "a remarkable exercise of judicial overreach."

The Supreme Court also asked for briefing on whether the portion of the McConnell decision that upheld the constitutionality of the ban in the Bipartisan Campaign Reform Act of 2002 (BCRA) on the use of corporate funds to pay for "electioneering communications" should be overturned.

(The portions of the McConnell decision that upheld the BCRA ban on political soft money in federal campaigns are not at issue in this case.)

In its 2003 decision in McConnell, the Supreme Court reaffirmed the Austin decision in upholding the constitutionality of the "electioneering communications" provisions of BCRA. These provisions prohibit the use of corporate and labor union expenditures to pay for broadcast communications mentioning federal candidates close to an election. These BCRA provisions were narrowed in their application in the 2007 Wisconsin Right to Life decision written by Chief Justice Roberts.

If Chief Justice Roberts were to support overturning the portions of the McConnell decision that upheld the "electioneering communications" provisions, he would be voting to reverse the WRTL decision that he wrote just two years ago.

Amicus Briefs

Amicus briefs are being filed by a broad array of individuals and groups in support of the constitutionality of the ban on corporate expenditures in campaigns, including by:

Senators John McCain (R-AZ) and Russell Feingold (D-WI) and former Representatives Christopher Shays (R-CT) and Marty Meehan (D-MA), the sponsors of the Bipartisan Campaign Reform Act of 2002;

Twenty-six State Attorney Generals;

The Committee for Economic Development, a national organization of more than 200 business leaders and university presidents;

Campaign Legal Center, Democracy 21, Common Cause, U.S. PIRG, Americans for Reform, League of United Latin American Citizens and Asian American Legal Defense and Education Fund;

Representatives Chris Van Hollen (D-MD), David Price (D-NC), Mike Castle (R-DE) and John Lewis (D-GA), long-time supporters of campaign finance reform;

Democratic National Committee;

Campaign Finance Scholars Anthony Corrado, Norm Ornstein, Tom Mann and Dan Ortiz

Former Leaders of the ACLU

Justice at Stake, an organization that supports effective campaign finance laws for state judicial elections

The Brennan Center for Justice at NYU, Center for Independent Media

The League of Women Voters, Constitutional Accountability Center

Independent Sector

American Independent Business Alliance

Center for Public Accountability

The congressional sponsors of BCRA and the Solicitor General of the United States, Elena Kagan, have jointly asked the Supreme Court to allocate 10 minutes of the Solicitor General's 30 minutes for oral argument in Citizens United to former U.S. Solicitor General Seth Waxman.

Waxman serves as lead counsel for the amicus brief filed by the BCRA sponsors and argued in the Supreme Court on behalf of the sponsors in support of BCRA in McConnell v. Federal Election Commission. The Court upheld the constitutionality of BCRA in the McConnell case, including provisions that are now before the Court in the Citizens United case.

SOURCE Democracy 21