Janice A. Oser, Esq.

The U.S. Supreme Court ruled on January 21, 2010, that the government may not ban political spending by corporations in candidate elections. In its decision in Citizens United v. Federal Election Commission, the court either: undermined our democratic system of government, by handing over the political future of the nation to special interest money, or: it strengthened our democratic system of government by reaffirming our First Amendment rights.

Depends on your point of view. Or on which commentators you find most convincing.

In the New York Times, for example, David D. Kirkpatrick wrote that the Supreme Court had handed lobbyists a new weapon. According to Mr. Kirkpatrick, a lobbyist “can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election (“Lobbyists Get Potent Weapon in Campaign Ruling,” January 22, 2010).

On the other hand, under “How Corporate Money Will Reshape Politics,” in the New York Times online "Room for Debate" blog, one commentator celebrated the court’s ruling as “a great day for the First Amendment” (“Restoring Free Speech in Elections,” January 21, 2010). The commentator was Joel M. Gora, a longtime lawyer for the American Civil Liberties Union and a professor at Brooklyn Law School.

Another commentator on the Times blog, Richard L. Hason, a professor at Loyala Law School in Los Angeles, focused on ramifications of the court’s decision for judicial elections.

Professor Hason referred to the court’s decision last term in Caperton v. A.T. Massey Coal Co. In that case (the subject of the Eldercountry Lawyer column in our November 2009 issue), a jury had awarded $50 million in damages to Hugh Caperton, whose mining company had been put out of business by nefarious means by the A.T. Massey Coal Co. When the case reached the West Virginia Supreme Court, the deciding vote to reverse a jury verdict of $50 million against A.T. Massey was cast by a judge elected with the help of $3 million dollars raised on his behalf by A.T. Massey’s CEO.

Writing for the majority in Caperton, Justice Anthony Kennedy noted that “there is a serious risk of bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

All that is cast aside, according to Professor Hason, in the majority opinion, also written by Justice Kennedy, in Citizens United v. Federal Election Commission. The decision in Citizens United, wrote Professor Hason, engages “in the fiction that candidates do not feel beholden to those who engage in large, independent spending favoring the candidates (or bashing their opponents).” This, says Professor Hason, is a bad enough fiction to apply to elected accountable officials but worse to apply to judicial elections.

The decision in Citizens United repudiated a major part of a ruling Justice Sandra Day O’Connor helped write before her retirement from the court in 2006. Justice O’Connor leads a group of judges, political officials and lawyers that has been campaigning to persuade states to choose judges on the basis of merit, rather than electing them. (Federal judges are appointed, but in 39 states, when we last checked, judges are selected by means of some sort of election.)

At a recent conference at the Georgetown University Law Center on judicial selection in the aftermath of Citizens United and Caperton, Justice O’Connor remarked, as quoted in the New York Times, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen” (“Former Justice O’Connor Sees Ill in Election Finance Ruling,” by Adam Liptak, January 27, 2010).

By the time of her retirement, Justice O’Connor had come to be regarded as the swing vote on the court, giving some cheer to those who hoped that in a given case she would cast her vote on the side of the four liberal justices rather than on the side of the four conservative justices. The Justices now appear to be more strictly aligned, with conservatives in the majority. One wonders if the history of our nation in these times would be written differently if Justice O’Connor, whose husband was ill at the time of her retirement, had not felt compelled to resign from the court.