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Is Citizens United already shrinking?

Retired Justice John Paul Stevens, a dissenter to the Supreme Court’s controversial 2010 decision in Citizens United v. Federal Election Commission on money in politics, said Wednesday that the Court has already begun paring the scope of that decision, and predicted that it very likely will do so further in future cases.  He did so in a speech at the University of Arkansas in Little Rock.  (The text is here.)  The remarks continued the retired jurist’s now well-developed habit of commenting on the continuing work of the Court, with candid expressions of when he agrees or disagrees with what it is doing or may yet do.

Stevens stressed at the outset of his speech that he was not repeating the arguments he had made at the time against the ruling, but instead would focus on four developments since then “that provide a basis to expect that the Court already has had second thoughts about the breadth of the reasoning in Justice [Anthony M.] Kennedy’s opinion for a five-man majority.”  But his remarks might well rankle some of his former colleagues in at least one respect: he sided with President Obama’s interpretation of Citizens United in the President’s State of the Union message just days after the ruling had come down.  Obama’s remarks were not well received by some of the Justices who heard them at the time.

Even though Justice Samuel A. Alito, Jr., in Obama’s audience, could be seen mouthing the words “not true,” Stevens said the President’s remark that presumably prompted that response was, in fact, an accurate one.  Quoting what Obama said, the former Justice said that the opinion would allow “special interests — including foreign corporations — to spend without limit in our elections.”  That was true of the opinion, Stevens argued, because “the logic of the opinion extends to money spent by foreign entities.”   The logic he had in mind, he noted, came in the Kennedy opinion’s comment that the Constitution did not allow restrictions on “political speech based on the speaker’s identity.”

Justice Kennedy, of course, had written then that the Court was not deciding how the ruling might bear upon foreign nationals or groups seeking to influence U.S. politics.  That, Stevens said Wednesday, was inconsistent with what the Court actually said about free-speech rights and a speaker’s identity.

The retired Justice said he had not discussed with Justice Alito what was behind the “not true” remark in 2010. but he said that must have been in reaction to the foreign money sources issue.  But Stevens went further, and interpreted Alito’s reaction then to be an indication “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.”  In a future case, Stevens said, Alito’s reaction suggests that there will not be a majority of the Court to literally apply the core premise of Citizens United that the identity of the political speaker cannot be the basis for restricting campaign spending.

If that day comes, and Stevens did not say when it might, he said that the Court would then have to explain why it was abandoning the speaker identity premise of Citizens United, or at least qualify that statement.   “It will be necessary,” Stevens said, “to explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters.”

Beyond his reading of the Alito reaction and its potential meaning, Stevens cited other evidence for his suggestion that, in time, there will be a “crack in the foundation” of the 2010 ruling.  Another obvious piece of his reasoning was the Court’s summary ruling this past January in the case of Bluman v. Federal Elections Commission (docket 11-275), upholding a lower court ruling that explicitly allowed a denial of a right to spend money on U.S. politics by two foreign citizens living in the U.S.  The foreign nationals in that case had challenged that restriction precisely because, they argued, it contradicted Citizens United; it was based on the identity of the potential speaker.   Foreign nationals are not allowed to vote in U.S. elections, and Stevens said the fact that the Supreme Court would not extend Citizens United‘s reasoning to them indicated that the Court is now prepared to allow differing treatment in campaign finance laws among different “non-voters.”

“Notwithstanding the broad language used by the majority in Citizens United,” Stevens commented, “it is now settled, albeit unexplained, that the identity of some speakers may provide a legally acceptable basis for restricting speech.”  (It was “unexplained” because the decision in the Bluman case was a summary one, without an opinion for the Supreme Court.)

Elsewhere in Wednesday’s speech, Stevens elaborated further on the concept of differing treatment of “non-voters,” suggesting that that is another concept that weakens the core of Citizens United.   If a foreign national living in the U.S. did not get First Amendment protection for his political spending, because he is a non-voter, Stevens said, then corporations that are owned or controlled by foreigners also should not be protected in their spending since they, too, are non-voters.   This should mean, he added, that Congress has the power to exclude foreign corporations from “direct participation in the electoral process.”   (These remarks were a third item on the Stevens list of reasons why he sees a changing constitutional landscape on campaign finance.)

The final piece of Stevens’ evidence was Chief Justice John G. Roberts, Jr.’s opinion for the Court in another 2010 decision, Holder v. Humanitarian Law Project — an opinion which Stevens, then still on the Court, had joined.  In that ruling, the Court upheld the enforcement of the law making it a crime to provide “material support” to a terrorist organization even when that would restrict speech-type activity by the supporter.   This did not violate the First Amendment, the opinion said, because those supporters were still free to express their political views, they just could not do so as a form of expressed support for — and under the direction of — such a terrorist organization.

In his Little Rock remarks, Stevens interpreted the Humanitarian Law Project decision as another indication that the Court will allow differing treatment of speakers under the First Amendment, based on their identity — contrary to the Kennedy statement in Citizens United.

In looking to the future, and some possible further relaxation of the Kennedy statement, Stevens said that the drawing of the line will depend on how a majority of the Court at that time decides what “will best serve the public interest,” rather than “on any proposition of law identified in the Citizens United majority opinion.”

Stevens’ speech made no direct mention of the pending case at the Court that appears to be a very important sequel to Citizens United — involving states’ power to restrict corporations’ spending in state elections (the case of American Tradition Partnership, et al., v. Bullock, docket 11-1179).   However, it would not be much of a stretch to see some possible implication for that case in remarks that Stevens did make about the importance of allowing state governments to restrict the political influence of foreign corporations, as non-voters in a state.



Recommended Citation: Lyle Denniston, Is Citizens United already shrinking?, SCOTUSblog (May. 30, 2012, 8:02 PM),