Sunday, October 24, 2010

Justice O'Connor's Prescient Support for Corporate Political Speech

More "Conservative" Than Chief Justice Rehnquist?

In a recent and informative analysis of the Supreme Court, David Savage of the Los Angeles Times concludes that the appointment of then-Judge Samuel Alito to replace Justice Sandra Day O'Connor shifted the Supreme Court "to the right." He also reports that opinion polling establishes that the public generally agrees with various decisions the Court has reached in recent years, including those that evidence a rightward tilt. That is the say (and I am extrapolating somewhat here), Savage concludes that Justice Alito is more likely to reach results congenial to constitutional conservatives --- and the American Public --- than was Justice O'Connor.

Savage provides several examples of decisions congenial to conservatives that the public approves. As he puts it:

"A strong majority [of the public] favored conservative rulings that prohibited “partial-birth” abortions, upheld a homeowner’s right to have a gun, and required voters to show photo identification."

Savage also notes that the public agreed with a couple decisions more congenial to those on the left, e.g., decisions allowing EPA regulation of carbon emissions (a decision, I will note, that did not involve application of the Constitution) as well as a decision striking down laws providing life in prison without parole for juveniles who commit heinous murders. Finally, Savage notes:

"There were two notable exceptions [that is, instances in which the public disagreed with the Court]. The public disagreed with the liberal decision two years ago that gave detainees at the U.S. prison in Guantanamo Bay, Cuba, a right to challenge their detention in a civilian court. Sixty-one percent of respondents said these noncitizen detainees should not be allowed to go to court. The public also disagreed with the conservative ruling earlier this year that gave corporations a right to spend freely to endorse or oppose candidates for election. By 58 percent to 40 percent, they disagreed with the notion that 'corporations ought to be able to spend their profits on TV advertisements urging voters to vote for or against candidates.'"

The decision protecting corporate speech, of course, was Citizens United v. Federal Election Commission, a decision advocated and then approved by this blog.

Savage points out that most of these decisions (including Citizens United and District of Columbia v. Heller, which found that the Second Amendment protects the individual right to bear arms) were decided 5-4, and asserts that Justice Alito's presence on the Court, replacing Justice O'connor, tipped the balance in favor of the more "conservative" result.

While it may be that Justice Alito has tilted the Court "to the right" on certain issues, e.g., the authority of states and Congress to regulate "partial birth abortion" (a practice that Senator Moynihan called "only minutes away from infanticide" and that then-Senator Biden voted to ban) his appointment did not tilt the Court on the question of free speech rights for corporations. Citizens United overruled Michigan Chamber of Commerce v. Austin, which sustained, by a vote of 6-3, Michigan's ban on speech by corporations for or against a candidate during an election. Justice Kennedy, the author of the majority opinion in Citizens United, issued a lengthy dissent in Michigan Chamber of Commerce, arguing that Michigan's ban on high value political speech violated the First Amendment. In so doing, he rejected the rationale for speech suppression articulated by the majority, namely, that corporations receive "special benefits" from the state, with the result that their speech does not reflect "actual public support" for the views expressed. He also rejected the argument that bans on corporate political speech protect shareholders from seeing "their" money (retained corporate earnings) used to support candidates with whom shareholders might disagree, an argument made by Justice Brennan in a concurrence. (It should be noted here that Michigan allowed shareholders and others affiliated with corporations to make contributions to so-called "segregated funds," and Justice Brennan argued that the ability to "speak" via these funds sufficed to protect shareholders' free speech rights. As I have argued elsewhere, this argument by Justice Brennan ignores the basic economic truth that relegating shareholders to individual contributions to segregated funds will result in significantly less speech than shareholders actually desire and for which shareholders would be willing to pay. Such speech is what economists call a collective good --- the party producing the good cannot exclude others from consuming it --- with the result that contributions by one shareholder to support production of the good benefit other shareholders as well. (Put more technically, from the perspective of individual shareholders, production of such speech is characterized by "non-excludability.") As a result, each shareholder will have an incentive to "free ride" on the contributions that other shareholders might make to support such speech. If each shareholder free rides in this way, no shareholder will contribute to support such speech, with the result that relegating corporations to reliance on such segregated funds will result in a severe burden on political speech that shareholders would otherwise support.)

Here is one of many "money quotes" from Justice Kennedy's opinion:

"Far more than the interest of the Chamber is at stake. We confront here society's interest in free and informed discussion on political issues, a discourse vital to the capacity for self-government. "In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue." First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 -785 (1978). There is little doubt that by silencing advocacy groups that operate in the corporate form and forbidding them to speak on electoral politics, Michigan's law suffers from both of these constitutional defects."

Importantly, Justice Kennedy did not speak alone. Instead, both Justice O'Connor and Justice Scalia joined his opinion in its entirety. That is to say, more than a decade before President Bush nominated then-Judge Alito to replace Justice O'Connor, Justice O'Connor had herself gone on record as opposing the sort of speech suppression schemes exemplified by the statute the Court sustained in Michigan Chamber of Commerce. Justice Kennedy's majority opinion in Citizens United was simply a reaffirmation of the views that he had expressed for himself, Justice O'Connor and Justice Scalia in his dissent in Michigan Chamber of Commerce.

As Savage reports, Justice Alito joined the Citizens United opinion, thereby reaching the same result that Justice O'connor would have reached, as evidenced by her dissenting vote in Michigan Chamber of Commerce. To be sure, Justice O'Connor may have felt compelled to follow Michigan Chamber of Commerce based on considerations of stare decisis, but there is no reason to believe she would have been more committed to stare decisis on this question than Justices Kennedy and Alito, for instance.

What, then, accounts for the Court's shift, from a 6-3 vote to sustain such suppression in 1990, to a 5-4 vote to condemn it last term? Two changes in personnel resulted in the shift. First, Justice Thomas, who joined Citizens United, replaced Justice Thurgood Marshall, who authored the majority opinion in Michigan Chamber of Commerce. Second, Chief Justice Roberts replaced Chief Justice Rehnquist, who had joined the majority opinion in Michigan Chamber of Commerce. The result was therefore a 5-4 majority in favor of protecting the free speech rights of corporations and the shareholders that employ the corporate form to express their views.

Some may be surprised that Chief Justice Rehnquist, often described as an "arch conservative," supported Court's decision in Michigan Chamber of Commerce. Don't conservatives always support the rights of big business, including corporations? Apparently not. While then-Chief Justice Rehnquist did not explain his vote in Michigan Chamber of Commerce, it's not hard to figure out why he joined the majority. After all, then Justice Rehnquist had dissented in First National Bank of Boston v. Belloti, where the Court struck down the effort by Massachusetts to suppress the speech of corporations during referenda campaigns. In that dissent, he argued that corporations are mere creatures of the state. As a result, he said, when states create corporations, providing them with limited liability and perpetual life, states need not empower such firms to employ the profits derived from these economic advantages in the political marketplace. Michigan Chamber of Commerce employed a similar rationale in sustaining Michigan's effort to suppress corporate political speech. Chief Justice Roberts, who replaced Chief Justice Rehnquist (for whom he had clerked), apparently rejected this line of reasoning when he joined Justice Kennedy's majority opinion in Citizens United. The divergence in views between these two "conservative" Chief Justices is further evidence that the fit between a Justice's (supposed) politics and his or her jurisprudence is not as tight as many apparently believe.