Don't Bet on Kagan Overturning Citizens United

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If there's one thing we are supposed to know about Supreme Court nominee Elena Kagan, it is that she is firmly opposed to the court's recent decision in Citizens United v. Federal Election Commission. When President Obama nominated Kagan in May, he noted that "last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections." That argument (her first in front of the court as solicitor general), he said, "says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

In Citizens United, the court struck down federal laws forbidding private corporations from spending their funds to influence the voters before federal elections. The First Amendment, it said, protected corporations' right to fund advertisements for or against candidates. (It has not extended this principle to direct corporate contributions to candidates.) Obama, the Democratic Party, and the progressive community generally have reacted to the decision with horror.

Presidents cannot count on justices to vote the way they expect them to. Theodore Roosevelt appointed Oliver Wendell Holmes Jr. in the expectation that Holmes would back him on busting the trusts. When Holmes defected, TR exclaimed, "I could carve a better judge out of a banana than that!" Before his appointment, Lewis Powell had loudly argued that presidents should have unlimited authority to wiretap "national-security" risks. On the bench, however, Powell wrote the opinion banning just such wiretaps. Later he said that "when you put that black robe on and take the oath, I think your entire viewpoint begins to change."

That Obama's appointees will succeed in limiting the Citizens United precedent seems to me unlikely. The decision is going to be hard to attack, in part because those leading the attack don't necessarily have clean hands. Obama is Exhibit A: he should be aware that, without meaning to, he filed one of the most influential "friend of the court" briefs in the case. That "brief" began, "I, Barack Obama, do solemnly swear . . . ."
 
Remember that in June 2008, Obama became the first presidential candidate in more than 30 years to opt out of the public-financing program and rely entirely on funds he raised himself. He had earlier seemed to promise to remain in it. But that was before he realized that the circumstances of 2008--popular excitement about his candidacy, his organization's mastery of the Internet, and the unpopularity of the Republican Party--had given him the keys to the campaign-fund bank. Giving up the $84 million public funding offered, Obama instead amassed a total of $745 million in private funds, nearly twice what Sen. John McCain could raise. In so doing, he almost certainly destroyed the public-funding system for presidential elections, the single remaining achievement of the post-Watergate wave of reform.

Of course, Democrats and progressives see a difference: Obama's funding was contributed ordinary people seeking to influence their government, just as they should in a democracy. Progressives see corporate expenditures, by contrast, are a tool of the powerful.

But one of the melancholy truths of public life is that our actions are judged by people who don't see the world we do. From the point of view of, say, a conservative justice of the Supreme Court, Obama's strictures on Citizens United may easily look like hypocrisy.

As a progressive, I find corporate speech different from that of individuals; corporations are constructed to make a profit, not to benefit the public. Corporations have a long history of distorting public debate; they often devote themselves to obfuscating issues and concealing the dirty work of society behind honeyed words. Corporations are immortal and impersonal. They harness and concentrate power in a way that seems to dwarf the ordinary voter, and even the ordinary state or local government. Their speech seems like a threat to democratic self-government.

But not everyone sees them that way. Republicans (and remember, all the conservative justices are Republicans) tend to assume the good faith of corporations just as Obama assumes his own; and they are alienated by strident anti-corporate rhetoric as surely as progressives are offended by diatribes against unions and civil-rights groups. During oral argument, Justice Kennedy told Kagan that "corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election." To a conservative, the moral difference between MoveOn.org (a nonprofit financed by individual donations) and Citizens United (a nonprofit financed by individual and corporate donations) may not be as dramatic as it is to progressives.
 
Would the court have decided Citizens United differently if the administration had come before it with clean hands? The aggressive--even "activist"--way the majority handled the case suggests not. The decision may, as some argue, represent sheer judicial partisanship. But it may also express a fear that expenditure limits will always represent one side or the other's effort to game the system, to make sure that its candidates have the advantage. And to overcome that fear, sponsors of campaign-finance reform will need to seem principled indeed.

Politicians must write the statutes the courts will test in the years ahead, and politicians have a tendency to jam their thumbs on the scales while proclaiming their own nobility. And that's why Citizens United may be hard to overturn--and why we should not assume that, once she has donned her robe and taken her oath, even Justice Kagan would vote to overturn it.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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