Right Decision, Bad Law, and a Way Out

Predictably, conservatives and liberals have taken quite different positions on the Supreme Court decision upholding the right of corporations to finance political advertising. To conservatives, the decision (which refused to strike down corporate funding of a political film) was a righteous affirmation of constitutional guarantees of free speech. Liberals saw the Court's ruling as handing the keys of government to greedy corporate fat cats who would use huge warchests to buy or bludgeon legislators.

There is something inherently wrong with both positions. Both the Left and Right are more concerned with achieving the policy outcome--and the election results--they prefer than with ensuring that federal campaign law comports with the requirements of the Constitution. In fact, the Court, bound by bad precedent, managed to issue a constitutionally correct decision that results in bad law; the dissenters, on the other hand, mistaking their judicial robes for certificates of election, would have preferred making better law even if it was unconstitutional. It is an unnecessary choice. There is, in fact, a way to come up with the better policy and yet stay within the bounds of constitutional permissibility.

First, four side observations, only because some of the reasoning that seeped down from the Bench set my teeth on edge.

1. Justice Roberts and the majority simply failed to acknowledge the consequences of the "perception" problem and its deleterious effect on the political system. Rightly or wrongly, many Americans believe the current system of financing elections and issue advocacy to have a corrupting effect. Cynicism leads to non-participation and non-participation undermines democracy.

2. Justice Stevens, on the other hand, writing in dissent, failed to sufficiently consider the existence, and binding effect, of a written Constitution. His concerns as to the political effect of the Majority's ruling may be justified but his proposed outcome lacked the sanction of constitutionality. Stevens did give welcome lip service to the congressional authority to write the laws it deems necessary and appropriate but failed to fully appreciate that the powers of Congress are not absolute but constitutionally constrained.

3. As to the question of corruption (a principal concern of the dissent), Justice Stevens has apparently accepted the cynical view of the lawmaking process that has been put forth by a number of political scientists and journalists; that is, that lawmakers are driven primarily by the desire to win re-election and that as a consequence they are easily seduced by the prospect of financial support for their campaigns. It is a view that is widely held and easily disproved. While a fear of defeat may cause some officeholders to sometimes withdraw from pursuing their true beliefs, especially on issues that mean little to them, the surest means of predicting how a legislator will vote is understanding the preferences of that legislator's constituents and knowing his or her basic philosophic approach to governance; coasting or under fire, conservatives stay conservative and liberals stay liberal. It is understandable why rank-and-file observers, cynical by nature and anti-government by long tradition, might buy the argument that all lawmakers are for sale but it is surprising that the well-educated would fall for such a superficial interpretation of why votes often turn out differently than one might wish.

4. Further as to the rationale of the dissenters, "potential for corruption" is not the same as "corruption." Outlawing anything with a potential for corruption would be impossible; even individuals who prefer a certain policy outcome can threaten or bribe. If laws punishing actual corruption require strengthening, they should be strengthened, but to prohibit an action on the grounds that corruption could potentially result is a particularly specious form of reasoning that could lead into strange dark alleys of legal nonsense.

So back to the decision in Citizens United. What is the problem that leads to a constitutionally correct decision endorsing a poor policy outcome?

The Majority is right in arguing that the laws may not constitutionally discriminate between citizens as to their right to address questions of public policy or try to affect the outcome of elections. In order to promote commerce and innovation, the law has established a legal fiction--the "corporation"--to minimize consequences for bad decisionmaking in the business and the industrial domain. In the 1880s, the Supreme Court ruled that constitutional protections extended to corporations. Thus, for legal purposes, corporations were, essentially, "persons." But of course they are not. Corporations are not people. Labor unions are not people. Associations, organizations, civic clubs, and political parties are all alike in this regard: none of them are actually people. By sustaining the fiction that they are, the Court has found itself with no constitutionally acceptable option other than holding that the laws may not favor some people and not others. In essence, the Court has been hoist by its own petard.

So what is the solution? Since the Courts habitually limit their decisions to the matter directly before them, it was not likely that they would go beyond the scope of the case, Citizens United, to reconsider the role of artificial people in the political process. If Congress were to legislate, however, that for the narrow purposes of political participation, only actual living human beings--real people--would be eligible, which in my view would be the proper course for a democracy ("demos" = "populace"). It is possible that the Court would then be forced to consider more narrowly and specifically whether it would be permissible to let real people, and only real people, decide the laws under which they would live.

Presented by

Mickey Edwards spent 16 years in Congress and 16 years teaching at Harvard and Princeton. He is a director of The Constitution Project and wrote Reclaiming Conservatism. More

Mickey Edwards was a member of Congress for 16 years and a chairman of the House Republican leadership's policy committee. After leaving Congress, he taught at Harvard for 11 years, where he was voted the Kennedy School's most outstanding teacher, and at Princeton for five years. He currently runs a political leadership program for elected officials as Vice President of the Aspen Institute and teaches defense policy and foreign policy at George Washington University. He has been a weekly columnist for The L.A. Times and The Chicago Tribune and is a weekly commentator on National Public Radio. Edwards served for five years as national chairman of the American Conservative Union and the annual Conservative Political Action Conference. He was one of three founding trustees of the Heritage Foundation. In 1980, he directed more than a dozen joint House-Senate policy advisory task forces for Ronald Reagan's presidential campaign. He is a director of The Constitution Project and has chaired task forces for the Council on Foreign Relations and the Brookings Institution. He served on the American Bar Association task force that condemned President George W. Bush, and his most recent book, Reclaiming Conservatism, was published in 2008.

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