Dissent

Justice Stevens, the author of the dissenting opinion.

A dissenting opinion by Justice Stevens^[25] was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens took the relatively rare step of reading part of his 90 page dissent from the bench.^[26] Stevens concurred in the Court’s decision to sustain BCRA’s disclosure provisions, but dissented from the principal holding of the majority opinion. The dissent argued that the Court’s ruling “threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” He wrote: “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

Justice Stevens also argued that the Court addressed a question not raised by the litigants when it found BCRA §203 to be facially unconstitutional and that the majority “changed the case to give themselves an opportunity to change the law”.^[21] He argued that the majority had expanded the scope beyond the questions presented by the appellant and that therefore a sufficient record for judging the case did not exist. Stevens argued that at a minimum the Court should have remanded the case for a fact-finding hearing, and that the majority did not consider other compilations of data, such as the Congressional record for justifying BCRA §203.

Stevens referenced a number of major First Amendment cases to argue that the Court had long recognized that to deny Congress the power to safeguard against “the improper use of money to influence the result [of an election] is to deny to the nation in a vital particular the power of self protection”. Burroughs v. United States, 290 U.S. 534 (1934). After recognizing that in Buckley v. Valeo the Court had struck down portions of a broad prohibition of independent expenditures from any sources, Stevens argued that nevertheless Buckley recognized the legitimacy of “prophylactic” measures for limiting campaign spending and found the prevention of “corruption” to be a reasonable goal for legislation. Consequently, Stevens argued that Buckley left the door open for carefully tailored future regulation.^[21] Although the majority echoed many of the arguments in First National Bank of Boston v. Bellotti, Stevens argued that the majority opinion contradicted the reasoning of other campaign finance cases — in particular,Austin v. Michigan State Chamber of Commerce and McConnell v. Federal Election Commission — and found it telling that the majority, when citing such cases, referenced many of the dissents.

Stevens’ lengthy dissent specifically sought to address a number of the majority’s central arguments:

First, Stevens argued that the majority failed to recognize the possibility for corruption outside of strict quid pro quo exchanges. According to Stevens, the Court should view the selling of a vote and the selling of access to a politician in exchange for a beneficial expenditure as two points on the same spectrum (instead, the majority separates them into discrete categories). Stevens referenced facts from a previous BCRA challenge to argue that contributors gain favorable political access,^[21] a point not contested by the majority but considered by the majority to be insufficient justification for limiting speech rights.

Stevens argued that in the past, even when striking down a ban on corporate independent expenditures, the Court “never suggested that such quid pro quo debts must take the form of outright vote buying or bribes” (Bellotti). Buckley, he claimed, also acknowledged that large independent expenditures present the same dangers as quid pro quo arrangements. Using the record from a previous BCRA §203 challenge, he argued that independent expenditures were sometimes a factor in gaining political access and concluded that large independent expenditures generate moreinfluence than direct campaign contributions.^[21] Furthermore, Stevens argued that corporations could threaten Representatives and Senators with negative advertising to gain unprecedented leverage. Stevens supported his argument by citing Caperton v. A.T. Massey Coal Co., 556 U.S. _ (2009), where the Court held that $3 million in independent expenditures in a judicial race raised sufficient questions about a judge’s impartiality to require the judge to recuse himself in a future case involving the spender. Stevens argued that it was contradictory for the majority to ignore the same risks in legislative and executive elections, and he pointed out that the majority opinion would only exacerbate the problem presented in Caperton because of the number of states with judicial elections and increased spending in judicial races.

Second, Stevens argued that the majority did not place enough emphasis on the need to prevent the “appearance of corruption” in elections. Earlier cases, dating back to Buckley and Bellotti, recognized the importance of public confidence in democracy. Stevens cited recent data indicating that 80% of the public view corporate independent expenditures as a method used to gain unfair legislative access.^[21] Stevens predicted that if the public believes that corporations dominate elections, disaffected voters will stop participating.

Third, Stevens argued that the majority’s decision failed to recognize the dangers of the corporate form. Austin held that the prevention of corruption, including the distorting influence of a dominant funding source, was a sufficient reason for regulating corporate independent expenditures. In defending Austin, Stevens discussed how the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside of profit-making, and no loyalty. Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.

Legal entities, Stevens wrote, are not “We the People” for whom our Constitution was established.^[21] Therefore, he argued, they should not be given speech protections under the First Amendment. The First Amendment, he argued, protects individual self-expression, self-realization and the communication of ideas. Corporate spending is the “furthest from the core of political expression” protected by the Constitution, he argued, citing Federal Election Commission v. Beaumont, 539 U.S. 146 (2003), and corporate spending on politics should be viewed as a business transaction designed by the officers or the boards of directors for no purpose other than profit-making. Stevens called corporate spending “more transactional than ideological”. Stevens also pointed out that any member of a corporation may spend personal money on promoting a campaign because BCRA only prohibited the use of general treasury money.

Fourth, Stevens attacked the majority’s central argument: that the prohibition of spending guards free speech and allows the general public to receive all available information. Stevens argued, relying on Austin, that corporations “unfairly influence” the electoral process with vast sums of money that few individuals can match, which distorts the public debate. Because an average person in the real world can only receive so much information during a relevant election period, Stevens described “unfair corporate influence” as the ability to outspend others, to push others out of prime broadcasting spots and to dominate the “marketplace of ideas”.^[21] This process, he argued, puts disproportionate focus on this speech and gives the impression of widespread support regardless of actual support. Thus, this process marginalizes the speech of other individuals and groups.

Stevens referred to the majority’s argument that “there is no such thing as too much speech” as “facile” and a “straw man” argument. He called it an incorrect statement of First Amendment law because the Court recognizes numerous exceptions to free speech, such as fighting words, obscenity restrictions, time, place and manner restrictions, etc. Throughout the dissent, Stevens argued that the majority’s “slogan” ignored the possibility that too much speech from one source could “drown out” other points of view.

Fifth, Stevens criticized the majority’s fear that the government could use BCRA §203 to censor the media. The focus placed on this hypothetical fear made no sense to Stevens because it did not relate to the facts of this case—if the government actually attempted to apply BCRA §203 to the media, the Court could deal with the problem at that time. Stevens described the majority’s supposed protection of the media as nothing more than posturing. According to Stevens, it was the majority’s new rule, announced in this case, that prohibited a law from distinguishing between “speakers” or funding sources. This new rule would be the only reason why media corporations could not be exempted from BCRA §203. Stevens and the majority conceptualize the First Amendment’s protection of “the press” quite differently. Stevens argues that the “Press” is an entity, which can be distinguished from other persons and entities which are not “press”. The majority opinion viewed “freedom of the press” as an activity, applicable to all citizens or groups of citizens seeking to publish views.

Sixth, Stevens claimed that the majority failed to give proper deference to the legislature. Stevens predicted that this ruling would restrict the ability of the states to experiment with different methods for decreasing corruption in elections. According to Stevens, this ruling virtually ended those efforts, “declaring by fiat” that people will not “lose faith in our democracy”.^[21] Because of the complex interrelated interests at stake, Stevens found this an undesirable area of law for black-and-white rules. Stevens argued that the majority’s view of a self-serving legislature, passing campaign-spending laws to gain an advantage in retaining a seat, coupled with “strict scrutiny” of laws, would make it difficult for any campaign finance regulation to be upheld in future cases.

Seventh, Stevens argued that the majority opinion ignored the rights of shareholders. A series of cases protects individuals from legally compelled payment of union dues to support political speech. Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Because shareholders invest money in corporations, Stevens argued that the law should likewise help to protect shareholders from funding speech that they oppose. The majority, however, argued that ownership of corporate stock was voluntary, and that unhappy shareholders could simply sell off their shares if they did not agree with the corporation’s speech. Stevens also argued that Political Action Committees (PACs), which allow individual members of a corporation to invest money in a separate fund, are an adequate substitute for general corporate speech and better protect shareholder rights. The majority, by contrast, had argued that most corporations are too small and lack the resources and raw number of shareholders and management staff necessary to cover the compliance, accounting, and administrative costs of maintaining a PAC. In this dispute, the opposing views essentially discussed differing types of entities: Stevens focused his argument on large, publicly held corporations, while the justices in the majority, and particularly Justice Scalia’s concurring opinion, placed an emphasis on small, closely held corporations and non-profits.

Stevens called the majority’s faith in “corporate democracy” an unrealistic method for a shareholder to oppose political funding. A derivative suit is slow, inefficient, risky and potentially expensive. Likewise, shareholder meetings only happen a few times a year, not prior to every decision or transaction. Rather, the officers and boards control the day-to-day spending, including political spending. According to Stevens, the shareholders have few options, giving them “virtually nonexistent” recourse for opposing a corporation’s political spending.^[21] Furthermore, most shareholders use investment intermediaries, such as mutual funds or pensions, and by the time a shareholder may find out about a corporation’s political spending and try to object, the damage is done and the shareholder has funded disfavored speech.

Stevens concluded his dissent:

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Correspondingly, Stevens and the other dissenting justices would have upheld the constitutionality of BCRA §203 and its restriction against advertising and broadcasting “Hillary: The Movie” within 30 days of the primary election on the grounds that the movie was produced and distributed by a corporate entity.

Source: http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission#Dissent