Contentious Supreme Court decision should trouble students

Pick up any newspaper from the past few weeks, and you’ll see its editorial board coming to some very historically worded conclusions about a recent Supreme Court decision. Citizen’s United v. the Federal Election Committee declares that the Bipartisan Campaign Reform Act (BCRA) of 2002, which expressly limits the amount of money corporations can give to political candidates, violates the First Amendment, according to the court.

The New York Times decries this decision as a return to the age of the Robber Barons of the 1910s.  The Weekly Standard hails it as a decisive blow to the First Amendment. Obama has said he “can’t think of anything more devastating to the public interest.” Now for a rather embarrassing question: Do you have any idea what it’s all about?  No?  Do you even know if you should?

On the latter point, even we aren’t sure. You, as a citizen, a college student and a human being, have next to no control over the Supreme Court at the best of times.  And judging by the way the court arrived at its decision, you might even have less control over it than everyone thought.

While the bravado of the justices’ baldly political decision isn’t unprecedented (see Bush v. Gore, 2000), the manner in which they heard the case was. In its first iteration, the issue of campaign finance reform didn’t feature in either argument.  The question was whether ads for a documentary made by Citizen’s United (a nonprofit group) counted as overtly political enough to be regulated under the BCRA. But in June of last year, the court ordered that the case be reargued under a broader framework. We’re judging intention here, but by our analysis the only reason for doing so seems to be political convenience; with the 2010 elections just months away, the conservative cadre on the court thought it better to have BCRA overturned sooner rather than later. Think of it as Simon asking an “Idol” contestant to forget her prepared audition and sing a song of his own choosing, because he knows Paula hates her too.

The resulting decision ruled that parts of the BCRA were themselves unconstitutional, a move that Harvard constitutional law professor Laurence Tribe says “signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court on an incremental and minimalist approach to Constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent.”  It’s that last part that has us worried. For as long we can remember, “adherence to precedent” was what made the Supreme Court cool.

In the dissenting opinion, Justice Stevens himself writes that “the path [the court] has taken to reach its outcome will, I fear, do damage to this institution.” And we agree. And either way, we think you should care.

Whatever you think of the rights of corporations under the First Amendment, to ask that the case be reargued to achieve a more politically urgent verdict (and beyond politics, we can’t understand why such a move would be necessary) is probably not a good idea. Unless you think John Marshall got off on the wrong foot back in Marbury v. Madison, 1803. But given that in the intervening centuries the Supreme Court became perhaps America’s most celebrated cultural export (until Ke$ha), it’s hard not to view this decision with dismay and cynicism. And we’ve got plenty of that to go around.

  • Jim

    The Court’s decision should be applauded.

    http://badgerherald.com/oped/2010/02/04/supreme_court_stands.php

  • Law Student

    “By our analysis the only reason for doing so seems to be political convenience; with the 2010 elections just months away, the conservative cadre on the court thought it better to have BCRA overturned sooner rather than later.”

    I’m glad that you all know more about the United States Constitution than the United States Supreme Court. I find it ironic that this editorial doesn’t even consider the fact that banning associations of individual citizens from airing independent political broadcasts in elections doesn’t comply with the First Amendment. It must have been a “baldly political” decision, because we can’t come up with any other reason for it! Furthermore, your editorial implicitly distorts the holding of the opinion. You claim that the Court held that the “Bipartisan Campaign Reform Act (BCRA) of 2002, which expressly limits the amount of money corporations can give to political candidates, violates the First Amendment.” True, the Court held that part of the Bipartisan Campaign Reform Act violates the First Amendment, but it wasn’t the part you mention in the subordinate clause. After this ruling, corporations still cannot give unlimited money to political candidates themselves. All spending much be independent of candidates. Maybe you should have read the decision before you criticize it.

    Your motives are clearly evident in this “baldly political” editorial.