ANYONE LOOKING TO THURSDAY might take today’s ruling on the Citizens United challenge as a harrowing warning.
That today’s ruling and the Citizens United case came about because of the right’s fear of Hillary Clinton in the White House has been largely forgotten.
The analysis at Election Law Blog is important to digest for anyone looking to read tea leaves on Obamacare:
Even on its own terms, though, the claim that the Court just miscalculated and would never have decided Citizens United had it known how negative the popular reaction would be seems like a desperate attempt to salvage a fundamentally flawed theory. Anyone following these debates at the time, or the general debates about the role of corporations in American democracy, knew how vehemently most of the public would react to the Court overturning decades of campaign finance law and licensing unlimited corporate election spending. Indeed, the best evidence that hindsight wasn’t necessary comes, ironically, from Friedman and Lithwick themselves. For one week after the decision in another Slate piece, they criticized the “bombshell” Citizens United decision for being dramatically out of touch with public opinion – as evidence by polls they cited even back then which showed that 76% of people believed government should have the power to limit corporate election spending. Perhaps we are supposed to think that the Justices in the majority were the only ones in the political elite who failed to understand how controversial and unpopular their decision would be.
But today’s Montana decision means we no longer have to speculate about such matters. Because if the Court made a mistake and simply miscalculated how the public would react to Citizens United, the Montana case presented the perfect opportunity, just two years later, for the Court to “correct” its mistake. Now in a position to fully appreciate “the strength of the negative public reaction” to the original decision, the Court nonetheless not only reaffirmed that decision but doubled down on it by making clear that it would tolerate no exceptions to Citizens United. That outcome comes as no surprise to those of us who believe Citizens United reflected powerfully held philosophical and constitutional convictions, whether we agree with those convictions or not. But it should put the final nail in the coffin of theories that assert the Court could have decided Citizens United only “by mistake” and, more generally, put to rest the view that Court decisions are destined to reflect “mainstream public opinion,” rather than sometimes standing forcefully against such opinion in the name of powerfully held philosophical and legal convictions. The American public might not believe in unlimited corporate speech rights in elections, but the Court’s majority does – and no amount of public backlash is going to cause this Court to back down.
It’s instructive today to look at the video produced by David Bossie and his group Citizens United, the premise of which was upheld today by the Supreme Court, which manifested the pouring of money into our elections in the first place.
But “Hillary: The Movie” never became a blockbuster. The Federal Election Commission restricted Citizens United’s ability to advertise the film during the 2008 primary season, a decision that Bossie and other conservative activists saw as a threat to their freedom of speech. “The marketplace for my movie was completely and totally shut down by the Federal Election Commission,” Bossie said in an interview Thursday. So he sued — and thus was born Citizens United v. Federal Election Commission, the legal drama that resulted in Thursday’s dramatic Supreme Court decision to overturn restrictions on corporate spending on behalf of or in opposition to political candidates. – Citizens United used ‘Hillary: The Movie’ to take on McCain-Feingold