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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Former Justice Stevens Predicts Cracks in ‘Citizens United’

Jeremy Leaming’s “Justice Stevens’ Reasoned Takedown of Citizens United” at the ACSBlog of the American Constitutional Society for Law and Policy reports on the retired Supreme Court Justice’s “methodical, thoughtful speech,” delivered at the University of Arkansas (full speech here). Noting that “Stevens’ former colleague Justice Samuel Alito mouthed “not true” during President Obama’s 2010 State of the Union address when the president said Citizens United could “open the floodgates for special interests – including foreign corporations – to spend without fault in our elections,” Leaming quotes from Stevens’ speech:

…Justice Alito’s reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion.
…Could the Court possibly conclude that expenditures by terrorist or foreign agents in support of a political campaign merit greater First Amendment protection than their actual speech on political issues? I think not. Indeed, I think it likely that when the Court begins to spell out which categories of non-voters should receive the same protections as the not-for-profit Citizens United advocacy group, it will not only exclude terrorist organizations and foreign agents, but also all corporations owned or controlled by non-citizens, and possibly even those in which non-citizens have a substantial ownership interest.

Even if Stevens is right, it’s not going to affect the 2012 presidential election. And regardless of how long it will take for new rulings to clean up the mess left in the wake of Citizens United, Justice Stevens’ address at Arkansas serves as a potent reminder of how important it is to restore balance and reason to a High Court that is now dominated by right-wing ideologues.
Election law scholar Richard L. Hasen adds in Politico that ‘Citizens United’ enables corporations to hide in the Super-PAC shadows and avoid consumer boycotts. But, the ruling actually threatens an important form of free speech, as Hasen explains,

Why are corporations reluctant to put their names on these campaign ads? They don’t want to lose customers. Target experienced a boycott a few years ago when the company gave money to a group supporting a candidate who opposed gay rights…But this is hardly a problem just for the right. The New York Times recently profiled a North Carolina company, Replacements Ltd., which is losing business because of its opposition to the state’s recent ballot measure banning same-sex marriage.
Both Target and Replacements Ltd. faced consequences for their political stands, but in neither case is it fair to call these boycotts “harassment” or “bullying.” Economic boycotts are protected political speech, and the potential of a boycott does not provide a basis to exempt anyone from required campaign disclosures.

In recent years, there has been a lot of discussion about how most voters cast their ballots based more on their emotional responses to candidates than candidates’ positions on the issues. But I have to believe that there are a significant number of swing voters out there who care about issues, including what a strengthened conservative majority on the U.S. Supreme Court resulting from Romney’s election might mean in terms of expanding corporate power over workers and consumers.
I realize it’s hard to make the future of the Supreme Court a leading concern among voters who are worried about losing their jobs, houses and pensions. Yet the Supreme Court has powerful leverage to adversely affect every aspect of economic security, and the Roberts majority offers scant hope that the interests of anyone except the wealthy will be protected — especially if Romney wins and appoints more arch-conservatives.
There is only so much that Democrats could do with this concern in their messaging, but it ought to be worth developing in an ad or two. What might help even more is if progressive media made it more of a a priority issue for public discussion.

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