Judicial Activism for Dummies

     Not so much recently, but not so very long ago, we became accustomed to seeing and hearing the words "judicial activism" and/or "activist judges" thrown about by those of the far right, by which I mean, primarily, conservative Republicans. It seems to me that to be an "activist judge," one has to believe that the rights of the individual are, in most cases, as essential to the overall well being of the body politic as the rights of  the many. Simply put, those who, like the late Chief Justice Earl Warren, a California Republican, believe in upholding  rights (educational equality, for example) of persons currently denied them risk being charged with being "activists" simply because of the way they view the intent of the Constitution. 

     In the last 150 years of  the history of the US Supreme Court (SCOTUS), the vast preponderance of this kind of decision has been of the conservative activist nature. We never seem to hear the term "activism" applied to those decisions which take things away from people. I am forced to conclude that, in the mind of the far right, giving or affirming rights previously denied is judicial activism, denying  rights or rescinding them is simply good jurisprudence.

     As examples, those federal judges who overturn state bans on gay marriage because it denies equal protection under the law, as well as numerous other rights, are activists. In like manner upholding the Voting rights Act of 1965 was an "activist" decision. On the other hand, the horde of SCOTUS decisions of the last half of the 19 century relating to corporate protection from state regulators, no matter the cost to individuals, was simply judicial acumen and skill, well applied.

     A classic example might be Lochner v NY, a 1905 case in which New York state was prohibited by SCOTUS from upholding a law, passed by the state legislature.  which limited the hours a bakery could require employees to work in a week to 60. An activist (oops, sorry wrong word, how about sagely wise?) conservative dominated SCOTUS ruled that, of all things, the 14th amendment protected these workers under the concept of the "contract clause." Writing for a five-to-four majority, Justice Rufus Peckham found the New York law an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” In plain terms, the bakery was free to require as many hours as the wished, and of course, that also meant that any employee objecting could be fired. Yes, yes, I know, the 14th amendment was supposed to protect citizens of a state from the malfeasance of that state. Who protects them from the federal government?

     The Court's basic position regarded most attempts at regulation of the private  marketplace/workplace, or to protect workers, as being  unconstitutional. The Lochner era reflected conservative judicial activism, which has a long history at the Court. The decisions of the nineteen-thirties, which rejected central several aspects of FDR's New Deal, also showed how conservative Justices could, and did, overrule the democratically elected branches. It was not until the  the fifties and sixties and the Warren Court era, that liberal judicial actions, now excoriated by the far right as "activism" became a force at the Court, as the Justices began overturning laws that violated the rights of minorities and women.

  

     I am sure that most readers are now at the point of, "So F*****g what? That was then!"  I am, dear readers, recapping history because recent SCOTUS actions are as activist or more so in the conservative, politicized direction than we have seen for a while.  The poster child for this new conservative activism, totally in opposition to the "liberalist, protect those who need it" mind set,  referred to in the Warren era, is the Citizens United vs Federal Election Commission  decision of the Roberts Court.

     Citizens United (CU for brevity) was brought as a test of federal election campaign spending limits and conditions. It arose mainly out of the 90 minute movie "Hilary, the Movie" financed by ultra conservative billionaires in an attempt to skew the Democratic Primary in 2008. If you love irony as do I, they might have wished to rethink their strategy, since President Obama won the nomination and the election. There were questions regarding the legality and source funding propriety of the film as well as its direct assault on an individual vice an issue or party platform.  To see how we got there, we need to look at the history of campaign funding.

   Republican (and progressive) Theodore Roosevelt won the White House in a landslide in 1904. Oddly enough, for a president who is largely remembered for fighting for reform and against corporate control of government,  TR was helped significantly during the campaign  by vast campaign contributions from corporations. Drawing heavily on donations from the (today we would call them CEOs) of railroad and insurance interests,  in the last days before the election he is alleged to have  made a personal appeal for funds to Henry Clay Frick, the steel baron, and other industrialists. 

     Roosevelt as it turned out to Frick's great chagrin,  came to  exemplify  the old adage, "be careful what you wish for!" Almost as soon as Roosevelt won the election, he turned his attention to passing the first significant campaign-finance-reform act in American history—trying to outlaw the very techniques he had just used to stay in office. Years later, Frick recalled of Roosevelt, “He got down on his knees to us. We bought the son-of-a-bitch and then he did not stay bought.”

In 1907, Roosevelt allied himself legislatively with one of the vilest man in Congress and one who was his antithesis in almost every way to push for and pass the Tillman Act, named for the eccentric rogue "Pitchfork Ben" Tillman, the South Carolina senator who sponsored the legislation. A vile racist, Tillman's presence must have made TR's skin crawl, but he needed Senate support, and many northern senators were at least partially in some large industrialist's pocket. (For more on this era and a superb read, I strongly recommend  Doris Kearns Goodwin's "The Bully Pulpit.") It should obvious  that Tillman, running essentially uncontested in a "whites only" voting scenario, couldn't have cared less about campaign finance personally - he didn't need it, and it was a good way to stick it to those who did - northern senators who typically loathed and feared  him.

     The Tillman  Act barred corporations from contributing directly to federal campaigns, and established criminal penalties for violations. Loopholes were many and fairly wide,  allowing, for example, individuals to give as much as they wanted to political campaigns and to be reimbursed for the contributions by their employers. Still, the Tillman Act was a first step toward what Congress described as its goal: elections “free from the power of money.”- as if! That never happened. 

There were, of course,  many in Congress then, as now, who kept their fingers crossed if forced to recite those words publicly. In subsequent decades, the power of money in politics only grew. After the Second World War, candidates began to campaign principally by buying advertisements on television, and that strategy created an ever-increasing need for cash, Eisenhower's "We like Ike" 30 second spots became the first TV election promos. Richard Nixon’s obsession with campaign fund-raising was one of the principal motivations that led to the Watergate scandals.

     In the wake of Watergate the next wave of campaign-finance reform ensued, the Federal Election Campaign Act Amendments of 1974, which supplemented the 1971 law (most of the Watergate shenanigans were already underway as the 1971 law was signed - by Nixon, no less!) was  law and created much of the regulatory structure that exists  today. The law set unprecedented limits on campaign contributions and spending; created the Federal Election Commission to enforce the act; established an optional system of public financing for Presidential elections; and required in depth  disclosure of campaign contributions and expenditures. So, problem solved, right? You'd like to think so, but not so fast Sparky.

     Soon after the 1974 Amendments to the 1971 Act  went into effect, several  politicians, among them James L. Buckley, Senator from New York, and Eugene McCarthy,  former Senator and Presidential candidate, challenged the new rules as unconstitutional. The resulting decision, known as Buckley v. Valeo, issued in 1976, remains one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.  To this day, no one even knows (or will admit) who really wrote it. It is signed “per curiam”—“by the Court”—which the Justices usually use for brief and minor opinions. Justice William Brennan is generally thought   to have written much of it, but (anecdotally) sections were also probably composed by Warren E. Burger, Potter Stewart, Lewis Powell, and William Rehnquist.  Because of this decision, wealthy candidates like Mayor Michael Bloomberg are free to  spend as much as they want of their own money on their campaigns; it would be unconstitutional to limit their expenditures. Again in plain speak, if you want to spend enough, you can buy elected office!

     In 2002, in a rare bipartisan move, the McCain-Feingold Act (the Bipartisan Campaign Contribution Reform Act) was signed into law by President Bush  This now put Congress and the Executive branch on the side of the angels regarding some limitation on buying elected office. In 2003, in one of the last major opinions of the Rehnquist Court, in McConnell v. Federal Election Commission, the Justices had upheld most of the law (McCain-Feingold) against a constitutional challenge led by Mitch McConnell (who else?), a Republican leader in the Senate and a dedicated foe of all campaign-finance reform.

     So much for the history, what about  CU? By now most folks know that the U.S. Supreme Court did something that changed how money can be spent in elections and by whom, but what happened and why should you care?

     The Citizens United ruling,  of January 2010, tossed out the corporate and union ban on making independent expenditures and financing electioneering communications. It gave corporations and unions the green light to spend unlimited sums on ads and other political tools, calling for the election or defeat of individual candidates.  In a nutshell, the high court’s 5-4 decision said that it is OK for corporations and labor unions to spend as much as they want to convince people to vote for or against a candidate.   

    So McCain-Feingold, and two Supreme Court precedents, had to be mostly overruled. The Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing. For the moment, at least, the ban on direct corporate contributions to candidates remained intact.

     So if the decision was about spending, why has so much been written about contributions? Like seven and eight-figure donations from people like casino billionaire Sheldon Adelson who, with his family, has given about $40 million to so-called “super PACs,” formed in the wake of the decision? For that, one must look  lower federal court case — SpeechNow.org v. FEC. The lower-court case used the Citizens United case as precedent when it said that limits on contributions to groups that make independent expenditures are also  unconstitutional.

     And that’s what led to the creation of the super PACs like Adelson's  and others, which act as shadow political parties. They accept unlimited donations from billionaires, (Adelson, the Koch brothers , Soros, et al) corporations and unions and use it to buy advertising, most of it negative.

The Supreme Court kept limits on disclosure in place, and super PACs are required to report regularly on who their donors are. As a second erosion of free election processes, there's an even more unregulated class - “social welfare” groups and some other nonprofits, like business leagues. These groups can function the same way as super PACs, so long as election activity is not their primary activity. But unlike the super PACs, nonprofits do not report who funds them. That’s disturbing to those who favor transparency in elections. An attempt by Congress to pass a law requiring disclosure was blocked by Republican lawmakers. Care to hazard a guess regarding who are  the primary beneficiaries of such groups?

     In one sense, the "back-story" of the Citizens United case goes back more than a hundred years and in some ways is a reversion to type.   It begins in the Gilded Age, an era of great and largely autonomous corporations , when the Supreme Court barred most attempts by the government to ameliorate the harsh effects of market forces. In that time frame , the Court said, for the first time, that corporations, like people, have constitutional rights, which was undoubtedly what 'ol Mitt Romney was thinking when  he chastised a questioner that "corporations are people, my friend."  The Progressive Era, which followed, saw the development of activist government and the first major efforts to limit the impact of money in politics. 

     Since then, the sides in the continuing battle have remained more or less the same: progressives (or liberals) vs. conservatives, Democrats vs. Republicans, regulators vs. libertarians, and over the last twenty years, to some degree, haves vs.  have nots.  One side has favored government rules to limit the influence of the moneyed in political campaigns; the other has supported a freer market, allowing individuals and corporations to contribute as they see fit. Citizens United marked another round in this contest.

     The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. ( disclaimer: if it ain't liberal, it a'int activism, except when it clearly is!) It was once liberals who were accused with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched its contempt for Congress with a disdain for many of the Court’s own precedents.

     When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Justice Anthony Kennedy. As an  overarching fact however,  the result represents a triumph for Chief Justice Roberts, whose concept of the breadth and scope of the gutting of McCain-Feingold he completley concurred with. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics morphs into its new form in the post-Citizens United era, whatever shape that might become,  the credit or the blame goes mostly to him.

      So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party. Roberts’s apparent choice was: a lot. Roberts, during his confirmation hearing, had made much of his judicial modesty and his "respect for precedent." If the Chief had written Citizens United, he would have been criticized for hypocrisy. By assigning  the opinion to Justice Kennedy he obtained a far-reaching result without leaving his own fingerprints.

      Justice Stevens wrote a 90 page dissent, joined by justices Sotomayor, Ginsberg, and . Among his points were:  “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” The case should have been resolved by simply ruling on whether McCain-Feingold applied to “Hillary: The Movie,” or at least to nonprofit corporations like Citizens United." He continued further along:  “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,” he wrote. “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 (lack)  of corporate money in politics.”   As a closing shot, Stevens wrote: (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 continued,  "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."

     It was an impressive dissent, but that was all it was. Anthony Kennedy, on the other hand, was reshaping American politics,  encouraged, aided and  abetted by a Chief Justice posing as a moderate. So McCain-Feingold, and two Supreme Court precedents, had to be mostly overruled. The Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing. For the moment, at least, the ban on direct corporate contributions to candidates remained intact.

     In any event, the implications of Citizens United were readily and immediately obvious. In March, 2010, the D.C. Circuit ruled that individuals could make unlimited contributions to so-called Super PACs, which supported individual candidates. This opened the door for Presidential campaigns in 2012 that were essentially underwritten by single individuals. Sheldon Adelson, the gambling entrepreneur, gave about fifteen million dollars to support Newt Gingrich, and Foster Friess, a Wyoming financier, donated almost two million dollars to Rick Santorum’s Super PAC. Karl Rove organized a Super PAC that has raised about thirty million dollars in the past several months for use in support of Republicans. The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.