Citizens United: No Holiday Gift – or Lump of Coal – From the Court


The Supreme Court recessed yesterday for the remainder of 2009, and, to the surprise of most Court-watchers, has gone off for the holidays without issuing its much-anticipated ruling in Citizens United v. FEC.  Depending on how the Court ultimately rules in the case, the inaction may or may not have been a gift to the American people.  As readers know, at issue in Citizens United is whether the Court will give corporations, never mentioned in the Constitution, the same rights as “We the People,” overturn a century of campaign finance law, and unleash corporate spending in elections that could overwhelm our democracy.

Last June, when the Court ordered an unusual re-argument in the case, it set that re-argument for September 9, a full month before the start of the new Term, indicating that the Court might rule quickly, perhaps even before the October Term began. But weeks and then months without a ruling began to tick by.  And last Tuesday, when the Court issued its first rulings of the Term, Citizens United was not among them, nor did the ruling come down yesterday before the Court recessed.  One can only assume, as one would have assumed of this Court in this case in any event, that the Justices are deeply divided over the outcome.  The relative lack of division in the four rulings issued last week in cases argued after Citizens United only serves to underscore that assumption.

The Justices will not be on the bench again until January 11, 2010, so it seems it will be a minimum of four months after the argument before the Court rules in the case.  While that length of time between argument and opinion will not be unprecedented, there are few “big” cases in recent Terms that have taken the Court that long to decide.  Moreover, as has been reported in a number of media outlets, including here in Politico, the Court’s delay is having a real-world impact, as “political professionals, regulators, advocacy groups and even the White House” are in limbo not knowing exactly what the rules will be for the 2010 elections.  It took the Federal Election Commission approximately five months after the Court’s last major campaign finance ruling to write new regulations to implement that ruling.

And we must also wonder — given the unexpected delay, will Citizens United in fact turn out to be the blockbuster that has been anticipated?  Will the Court in fact step off the cliff and give corporations the same constitutional rights as people?  Or, might the case turn out to be another NAMUDNO – sound and fury at oral argument indicating that the Court was ready to invalidate a key provision of a critical civil rights law, only to have the Court back away from the precipice with a more moderate ruling?  There’s now more time to ponder and debate all these possibilities.

The Court’s delay also means that there’s time for a little more reading related to this important case, not to mention a shameless plug.  If you haven’t yet read the discussion draft of CAC’s forthcoming Text and History Narrative Report, tentatively titled:  “A Capitalist Joker”:  Corporations, Corporate Personhood, and the Constitution, you can find it here.  As explained in more detail in our recent post, this report builds on the scholarly research discussed in our amicus brief in Citizens United, demonstrating through an examination of constitutional text and history that corporations simply are not entitled to the same constitutional rights as human beings, particularly when it comes to influencing electoral politics.  We’d love to hear your thoughts on this draft.

And if you are looking for a holiday gift for that special someone in your life who can’t get enough of the Constitution, print out “A Capitalist Joker” and slip it under the tree.  You’ll be glad you did.