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What Direction Will The Current U.S. Supreme Court Take?

What Direction Will The Current U.S. Supreme Court Take?
The United States Supreme Court recently made a ruling that could have a major impact on the nation's campaign finance laws. These Days legal analyst Dan Eaton join us today to explain the court's decision, and how it could impact elections in the future.

ALAN RAY (Host): You're listening to These Days in San Diego. I’m Alan Ray, in for Maureen Cavanaugh. When he was being considered for confirmation by the U.S. Senate, Supreme Court Chief Justice John Roberts talked a lot about the importance of precedent, existing law, settled cases. He said a court under him would respect precedent, especially in cases previous Supreme Courts had considered and settled. Mostly the questions he was addressing had to do with reproductive rights and the high court's ruling in Roe v. Wade. Whatever the Roberts court may or may not do in the area of reproductive rights, it seems clear that decades of precedent mattered very little, if at all, in the area of political campaign finance. The court last week basically ruled there are no limits on campaign spending by big corporations, maybe not by big unions either. In a single ruling the nation's highest court had consigned decades of settled campaign finance law to the dustbin of history. We’re joined on These Days by KPBS legal analyst Dan Eaton. And we’d be pleased if you’d join the conversation at 1-888-895-5727, 1-888-895-KPBS. Dan, good morning.

DAN EATON (KPBS Legal Analyst): Good morning. That was a very harsh introduction, though, of what the court actually did. Boy, that – When I was listening to what you were saying, Alan, I said, hmm, I’m not sure I would agree with the way you just characterized the Roberts court in this particular ruling, in particular the suggestion that Chief Justice Roberts was somehow being unfaithful to the testimony he gave during his confirmation hearing.

RAY: Well, the question, though, is did they disregard precedent?

EATON: Well, yeah, they did overrule precedent but Chief Justice Roberts in a separate agreeing or concurring opinion explained why they overruled this precedent. One was a 1990 case, another was a 2003 case, and you could argue, as Justice Stevens did in his 90-page dissent, they overturned a lot of certainly understood principles with respect to the constitutionality of restrictions on corporate spending. But it’s probably useful to give a little bit of background of the case before we jump into the arguments that engaged the justices about respect for precedent and so on.

RAY: Okay, do, please.

EATON: Sure. The case, we have to remember, concerned whether corporate money could be used to make an independent expenditure to broadcast a 90-minute film that was highly critical of then Senator Hillary Rodham Clinton. The film is called “Hillary: The Movie.” And this particular organization, Citizen United (sic), wanted to use corporate funds to broadcast this in the 30 days before a critical presidential primary. Basically, the thesis of the movie, although there’s some debate about this, was that Hillary Rodham Clinton was unfit to be President of the United States. That ran afoul – running that within 30 days and using corporate funds would have run afoul of a provision of the bipartisan Campaign Finance Reform Act commonly called McCain-Feingold, which prohibited the use of money for electioneering that expressly referred to a federal candidate such as a candidate for president within the 30 days before primary or 90 days before a general election.

RAY: Okay. The reason I have heard the analysis that this was – that this action in this case ran counter to Justice Roberts’ promises that he would respect precedent and not make this an activist court is that the court actually asked for a re-argument of a case that had already been argued before it, specifically with this in mind.

EATON: Well, that’s certainly right. Part of that was part of what came out in oral argument. The case was originally argued in March and during oral argument, Justice Alito asked a question of the Government Advocate who was defending the McCain-Feingold law and said, well, under your reasoning, would it ban – would you be allowed to bar the use of corporate funds to prohibit the publication of a book? And the government said, yes. Although the statute specifically doesn’t refer to printed materials, the government would have that power. And Justice Alito’s response was, boy, that would be pretty incredible, or his words. So there were concerns that were raised during oral argument that maybe the court ought to go further. That’s what they were talking about. And they said, well, all right, instead of deciding this at the end of our term in June, we’re going to put it down for further argument. And then they had a special session in September with the new justice, Sotomayor.

RAY: Now, I don’t – I’m not a legal scholar by any means, certainly don’t follow the Supreme Court day in and day out, but I don’t recall another case in which the court has asked for a re-argument of an issue like this?

EATON: Well – Well, of course, not in recent memory. But actually it’s useful to remember that in another landmark case, Brown versus the Board of Education, they asked for a re-argument of cases. Is it unusual? Absolutely. It’s very, very unusual but obviously this was considered a very important case and they wanted to get it right and so they asked for re-argument and, hence, the five to four decision that we are here talking about today.

RAY: Okay, what kind of effect is this likely to have on future elections?

EATON: Well, it really depends, actually. The interesting thing about a Supreme Court ruling is that it doesn’t automatically affect every other law. Obviously, the rulings of the Supreme Court are entitled to complete respect by the other courts, both state and federal, on questions of federal constitutional law such as the First Amendment. So other courts have to abide by them, but what does that mean exactly? In order to bring the Supreme Court’s ruling into effect you will have to see – you will see challenges to various laws that are on the books that do restrict independent expenditures by corporations, whether during particular time periods or completely, as some states do. So you will see this effect on a case by case basis unless some of these state legislatures or municipalities repeal those laws altogether. The bottom line is, though, the practical effect is you’re going to see more corporate—and it should be added labor union—spending, independent expenditures, in races for all kinds of government races because the Supreme Court has spoken on what the First Amendment means and that, ultimately, is the supreme law of the land.

RAY: You’re listening to These Days on KPBS. We’re talking with KPBS legal analyst Dan Eaton. We’d be pleased if you’d join the conversation, 1-888-895-5727, 1-888-895-KPBS. If I understanding (sic) you correctly, there probably will be incremental change in what happens in the participation – major corporate participation in that last 30 days before elections.

EATON: Well, that’s right. Certainly, the narrow issue before the court dealt with the constitutionality of the provision you just mentioned under the McCain-Feingold Bill. That is no longer good law. That has been wiped off. That is unconstitutional. And, therefore, with respect to the upcoming federal campaigns in 2010, it will have an immediate effect because these restrictions on independent expenditures by corporations and labor unions have been wiped off the books, so it could have an effect on campaign 2010. When you’re talking about other laws and so forth, you’re looking about more incremental changes. If I could go back to Brown versus the Board of Education again, when the Supreme Court ruled that separate – but separate but equal was unconstitutional with respect to school desegregation, it took several decades before that ruling ultimately, through incremental challenges in the state and federal courts, came to fruition. And some would argue, of course, it is still being debated. Even the Roberts court issued a ruling not too long ago in Pico versus Seattle School District, where Brown versus the Board of Education and the meaning of it were debated among the justices.

RAY: Okay, again, this’ll be incrementally unfolding for us. Is there any indication at all of how this might affect politics in San Diego anytime in the future.

EATON: Yeah, actually, I did look at that question specifically, and I looked at the city’s campaign finance law in particular. And, interestingly, there is a provision under San Diego – in the San Diego Municipal Code that specifically addresses the use of money by corporations. Not so much independent expenditures but under San Diego’s municipal ordinance, corporations are prohibited, and other what are called unnatural persons, in other words people without a pulse, are prohibited from contributing to committees that expressly advocate for or against a candidate for city elective office. That’s found in Section 27.2950 of the city’s municipal code, and it says it is unlawful for any person other than an individual to make a contribution supporting or opposing a candidate for elective city office. Now that probably falls, under my reading of the ruling that was just issued in Citizen United (sic). But, again, that is the kind of thing where a Superior Court judge or a federal judge will have to rule and consider the analysis and whether this particular decision by the U.S. Supreme Court invalidates that particular municipal law.

RAY: We’d like it if you’d join the conversation on These Days, 1-888-895-5727, 1-888-895-KPBS. Alison in Tierrasanta, good morning. You’re on These Days.

ALISON (Caller, Tierrasanta): Hi. I would just like to point out that a lot of corporations are small businesses. For example, I work for a corporation that has two owners and employs eight people. So I was wondering if this ruling by the Supreme Court will actually give small businesses a greater voice in the campaign process.

EATON: Wonderful question, Alison, and the answer to your question is absolutely yes. Of course, we tend to focus on the big mega-corporations like IBM or Microsoft and so forth but the fact is that it does apply to small corporations as well, and they will have a greater voice as a result, especially at the local and state level where their resources will give them more bang for the buck. What Justice Kennedy said in his opinion for the five-member majority is, quote, if the First Amendment has any force, it prohibits congress from finding or jailing citizens or associations of citizens for simply engaging in political speech. And that – closed quote. And that means, Alison, that you’re talking about corporations big or small. And, yes, the effect of this ruling is going to be that they are going to be able to spend, at least independently, which is to say not coordinated with any candidate, on matters that matter to them, including the election of specific candidates and not just limited to particular candidates, now – to particular issues, for example, referendum issues. Now, of course, it’s important to point out that corporations still cannot contribute directly to candidates. That was left undisturbed by the court’s ruling, and that’s why it’s not as dramatic as some people think it is. But independently, absolutely, if you’re not coordinating with the candidate, small corporations will be able to spend freely.

RAY: Okay, we had a call from somebody who couldn’t wait, so I will ask it. Has the Roberts court, in your opinion, Dan, made any decisions that would be considered anti-business?

EATON: Oh, sure. There have been several decisions that have been anti-business, depending on your perspective. There’ve been some employee friendly rulings that if you want to consider that, would be considered anti-businesses. For example, there was a ruling a couple of years ago that held that employees are protected from retaliation when they complain about racial discrimination at work. That was a seven to two decision with only the two most conservative justices dissenting. There have been rulings concerning investors’ rights and there have been a variety of rulings that have been more mixed with respect to businesses. It is not fair to say, for example, that this is a corporatist court in any sense of that word. There were some rulings the year before that, before the 2007-2008 term, that were viewed as very corporate friendly, most notably the Ledbetter decision which congress ultimately overruled with respect to employee rights to challenge pay inequities. But there – Roberts rulings have been a mixed bag. That said, the Roberts court has certainly shown a greater degree of interest in business litigation than have recent courts in the past.

RAY: You’re listening to These Days on KPBS. Gayle in Carmel Valley, good morning.

GAYLE (Caller, Carmel Valley): Good morning. Thank you for taking my call. I have a question in regard to how the court decided that the corporation, the – and also unions and nonprofits are considered. It seems as if they’re looking at them as individuals. And I’m wondering, since I also heard that the initial – there was some mistake, actually, in the law in the past where the corporation was not supposed to be considered an individual, it was a mistake. And so, I’d like – have two parts to the question. One is, is this correct that the court has overturned precedent and now seems to be saying that these entities are like an individual, which they’re not really, in reality, and should there be some kind of separate law by the congress to clarify the difference between individual freedoms and the freedoms that are equated to those types of entities? And then the other thing is, that hasn’t the court now given corporations that have deep pockets, or any entity that has more money, more freedom of speech because unions and nonprofits do not have as much money to be able to give to campaigns.

EATON: All excellent questions, Gayle, actually, and a lot of what you said, of course, is found in Justice Stevens’ 90-page dissenting opinion. First of all, with respect to the corporation versus the individual distinction, which really gets to the heart of the debate or the dispute between the majority on the one hand and the dissent on the other, basically what the majority said was, look, corporations are – have the same rights of freedom, that was a quote I just read, that individuals have, at least with respect to independent expenditures. There is no rationale for treating them differently, and that was the quote from Justice Kennedy that I just read. With respect to clarifying the law of congress, whether congress could clarify this law to distinguish between individuals and corporations, the answer the court gave pretty clearly is no, that would not be constitutional to treat them separately. That’s – at least with respect to independent expenditures. That is, in fact, what McCain-Feingold attempted to do and what the court said they could not do. But there was an interesting footnote, number 76 in Justice Stevens’ dissenting opinion, where he said, look, there are things that congress can do, and that is to say, for example, they could require shareholders to approve such expenditures by publicly traded corporations before such expenditures are made. So there are a variety of fixes that Justice Stevens, anyway, thinks that the court can do. But as far as this distinction between individual and corporation, the court said no. There was a debate between the majority on the one hand and the dissent on the other as to whether the original understanding of the First Amendment properly should be viewed as treating individuals and corporations as equivalent for the purposes of this particular area of the law but, obviously, five is a greater number than four and so the majority ruled and, therefore, said that absolutely corporations should have the same freedom of independent expenditures as individuals. And the final question you asked about deep pockets raises the broader question of whether allowing these corporations to spend all this money would somehow distort the playing field, and basically the majority said that is not a sufficient rationale. Let freedom ring, as it were. At least that’s what the majority said.

RAY: By your reading of the Constitution, did the founders actually imagine corporations of the kind we have now? And imagine that they would have a voice in the political arena that these have been given?

EATON: Of course, those are two separate questions. The first is, did they imagine corporations, the kind we have now. The answer to that is clearly no. At the time of the founding of the Constitution, as both Justice Scalia, in a separate agreeing opinion, and Justice Stevens agree, no, they did not. Corporations were originally state chartered institutions. They are created differently right now. But did they imagine they would have a voice, probably not to this extent. So the original understanding is a little bit tricky here as far as that go (sic). But nonetheless, we do – There were quite a number of corporations at the time and the question comes whether there ought to be some sort of discrimination, whether the First Amendment, by its text, suggests there ought to be different categories of privileges for speakers. And, anyway, the majority said no, there’s nothing in the First Amendment’s text, congress shall make no law, and so on, that suggests that corporations ought to be treated differently from individuals.

RAY: You’re listening to These Days on KPBS. We’re talking with KPBS legal analyst Dan Eaton about last week’s Supreme Court ruling on campaign financing and the limitations that had been imposed under the McCain-Feingold Act and now no longer are. 1-888-895-5727, 1-888-895-KPBS. Scott in University City, good morning. You’re on These Days.

SCOTT (Caller, University City): Yes, the City of San Diego campaign ordinance not only restricts companies or corporations from giving to individual candidates but in independent expenditures, it restricts any organization like a political action committee or a business group from doing independent expenditures for candidates if they use any money that is not from individuals alone but is from companies or corporations. So would this also affect – this ruling affect political action committees that include funds that are from corporations or businesses?

EATON: Well, Scott, that’s an excellent question. And you are raising, of course, exactly the provision that I talked about some moments ago. You are correct that San Diego does restrict the use of corporate funds by these primarily what they call primarily formed recipient committees that expressly advocate the election or defeat of city candidates. So there is an argument that this new ruling under Citizens United would strike those provisions down as unconstitutional. When you look at the city’s campaign ordinance, it’s clear from the language that a lot of it was mirrored on federal law, although pre-McCain-Feingold, which was only passed in 2002. So the short answer to your question is, Scott, yes, it is vulnerable. Will it ultimately be overturned as a result of Citizen United (sic)? We don’t know. Because that’s the thing about Supreme Court rulings, ultimately their implementation depends on a case by case ruling, case by case rulings in the lower courts. And we’ll just have to see how that ultimately comes out but, yes, it stands on shakier constitutional ground today, Scott, than it did before this ruling came out last week.

RAY: Can we talk a little bit about the dynamics of this court.


RAY: Five to four, five to four, five to four, that’s how all the big ones seem to come down.

EATON: Not all of them. And, in fact, last – in recent terms, of course, that hasn’t happened as much. But you’re right, there are a lot that have been five to four, Alan.

RAY: And if you look at that, in the deciding vote it’s been Justice Kennedy.


RAY: Well, I mean, he’s the one who’s…

EATON: And, again, not all the – and not all the time again. In the 2007-2008 term, it wasn’t so much. But you’re right. In recent years, Justice Kennedy has been the key deciding vote, that’s right.

RAY: What is – Does anybody have any idea of the dynamics of that? Are Kennedy and Roberts sitting down and talking about this or is Roberts basically doing what he thinks he can get Kennedy to vote for?

EATON: That’s a great question, Alan, and that’s the reason why we don’t really know whether Kennedy has this outsized influence or whether this is part of the dynamic in the conference. Why don’t we know that? Because when the court sits down to decide how they’re going to decide the case, after they hear all arguments and they meet on Fridays and so forth, they’re – It’s only the nine of them in the room and no one else is present at all. So we really don’t know exactly what’s happening there and why these cases are coming out the way they are. One interesting additional wrinkle, Alan, is that there’s likely to be a vacancy in the court. In about four or five months, we’re going to be talking about a vacancy. And who will that be? It will be Stevens, who wrote the 90-page dissent. What is interesting about that? The fact is that because Barack Obama’s doing the appointing, you have the liberal minority, which is four justices getting younger and the conservative majority getting somewhat older by the day. So it’ll be very interesting to see what Barack Obama does in replacing, what is presumed to be replacing, Justice Kennedy with – Justice Stevens, rather, with a relatively liberal voice.

RAY: Now that won’t actually change the dynamics of the individual votes when you come down to these five-four cases.

EATON: Not for now. But the interesting thing is over the long run it could. That’s to say that if one of the conservative justices were to retire—and there are term limits on Supreme Court justices, called life—when one of them – when one of their terms expire, one way or the other, you’re – you will see a change. But for right now, it seems the conservative majority is pretty solid and stable.

RAY: All right, let’s go back to the phones. Ron in Tierrasanta, good morning. You’re on These Days on KPBS.

RON (Caller, Tierrasanta): Yes, good morning. This is more of a comment. Burke said that all power corrupts and absolute power corrupts absolutely. And the only absolute power that the founding fathers really gave us was the lifetime tenure of the Supreme Court justices, and I think that power is corrupting, plus the fact that the Supreme Court took on the role of absolutely interpreting the law so that it can throw out 200 years of law today. And my feeling is that we should go the way some states do, that after about ten years the people should have a chance to ratify whether those Supreme Court justices spend the rest of their lives there or not. I will say that it seems the Republicans have certainly gotten their money’s worth out of the first and second Bush administrations.

EATON: Well, I don’t really know how to say that. Of course, the comment that was made that the quote with which you started was from Lord Acton and the actual quote was ‘power tends to corrupt…’ But, nonetheless, your underlying point is an interesting one. You know, efforts to mess around with the life tenure of the justices, that was tried unsuccessfully back by Franklin D. Roosevelt. It didn’t work very well. I think there is a strong push for the independence of the judiciary but certainly there are a lot of people who feel, Ron, as you do, that this decision somehow distorted constitutional principles. But there are a lot of people, on the other hand, who say, no, what they did was simply discard a past decision that was no longer workable and that wasn’t faithful to the constitutional text.

RAY: Okay, we have one last question from a caller who couldn’t stay. Why do corporations have no limits, this caller wonders, but individuals still do? That seems unfair. Can you explain that logic.

EATON: That’s also not quite right. Corporations do have limits. Unlike individuals, corporations cannot contribute directly to individual candidates. But the fact is that – and individuals don’t have any limits at all. They have the limits of their pocketbooks, of course, and that’s what one of the callers said about the issue of the deep pockets and so on. But, no, it’s not correct that individuals have more restrictions than corporations except that individuals have less money than a lot of corporations.

RAY: Okay, so now this campaign finance issue is settled law in the legal term.

EATON: Well…

RAY: At least until somebody else comes along and decides to unsettle it.

EATON: On this narrow issue, which is just – which means that independent expenditures by corporations cannot be restricted, at least as they did it under the bipartisan Campaign Reform Act. Is congress going to try to come up with more evidence that there is some sort of corruptive effect to this independent expenditures? Perhaps. That’s what – that’s one of the other suggestions that Justice Stevens had. But for now, the law is settled and lower courts must obey the Supreme Court. It is indisputably – as Chief Justice John Marshall once said, the great Chief Justice, it is indisputably the province of the United States Supreme Court to say what the law is, and that the court did.

RAY: Do you know of any other cases the Supreme Court might now consider in the future that might also have this kind of impact?

EATON: Well, this kind of impact, it’s tough to say, but there are some very big cases coming up, Alan. In fact, one involves a case by the name of Skilling versus the United States. Skilling may sound familiar. It should because he’s a former head of Enron and he’s challenging his conviction on what’s called the honest services law. Well, there are some justices, including one very conservative justice, Scalia, who has suggested that that law, which gives prosecutors, federal prosecutors, broad powers to prosecute for misdeeds in the corporate realm—since we’re talking about corporations—is unconstitutional because it’s too vague. So that one might – There’s also another one. Remember the Heller decision some years ago where the court recognized the Second Amendment right to keep and bear arms in individuals. Well, now the court is going to hear argument on the day after they hear the Skilling case as to whether that applies to state and local governments as well. So, yes, there are a few very big landmark decisions. Let’s not forget the cross case, Buono versus Salazar, that was argued earlier this year which talked about the cross on public lands and we in San Diego may have some interest in how that particular decision comes out.

RAY: Okay, we started talking about Roe v. Wade. Is there a chance that might be revisited by this court?

EATON: No, not at any time in the near future. You talked about Justice Kennedy…

RAY: Yes.

EATON: …and so forth and of course in Casey versus Planned Parenthood, he was one of the three Republican appointee justices who said no, let’s leave Roe versus Wade for – alone for now. And I don’t see, certainly not with Barack Obama doing the appointment, that that particular ruling is in any jeopardy anytime soon.

RAY: Dan, thank you very much.

EATON: Thank you, Alan.

RAY: That’s KPBS legal analyst Dan Eaton. I’m Alan Ray, in for Maureen Cavanaugh. You’re listening to These Days on KPBS.