Breaking News: The Montana Campaign Finance Decision, the Supreme Court, and “Public Opinion”

In holding Montana’s ban on corporate electioneering unconstitutional today, the Supreme Court stuck to its guns about Citizens United and put the lie to shallow, but frequently repeated, theories about how much public opinion constrains the Court. According to these theories, the Court’s decisions do not and will not stray far from “mainstream public opinion” because political institutions or “the public” will punish the Court if its decisions do so. Savvy to this dynamic, the Court factors the “anticipation” of this potential punishment into its decisions and hence avoids from the start decisions that will inflame large majorities. Thus, these large structural forces supposedly constrain the Court to issue only opinions that are well within the mainstream of public opinion on even the most controversial issues. Rather than decisions reflecting a mix of jurisprudential, philosophical, ideological, and legal understandings, the decisions should be understood more like weathervanes in which the Court tilts toward the direction in which the most dominant popular forces happen to be blowing. Journalists are drawn to these theories, since they can take readers outside the more legalistic issues within the opinion to speculate more broadly (even if without any foundation) for why the Court “really” decided a case the way it did.

In recent years, the biggest embarrassment to these theories — which I have criticized in depth in my academic writing — has been the Court’s extremely well known, controversial, and greatly unpopular decision in the Citizens United case. From the moment the Court held two years ago, in a 5-4 decision, that corporations have the constitutional right to spend unlimited amounts of money to seek to influence election outcomes, polls have consistently shown that roughly 80% of the public strongly opposes the decision. Measured by “mainstream public opinion” (not a concept I like, since getting a meaningful handle on “public opinion” is so elusive, but a concept central to theories that insist “public opinion” strongly constrains the Court), few decisions in recent decades can be said to so boldly fly in the face of “public opinion.” So how do the theorists who insist the Court is strongly constrained by “public opinion” explain the decision?

They cannot conclude that the majority of the Court has strong constitutional or even ideological convictions (whether right or wrong) that corporate political speech is just as entitled to First Amendment protection as other political speech. After all, to conclude that these Court commentators would have to accept that the Court’s decisions in big cases rest on something other than guesses about where “mainstream public opinion” lies. So instead, these Court commentators have to assert that the otherwise savvy Court just made a massively mistaken miscalculation when it decided Citizens United. Thus, my colleague Barry Friedman and his co-author, Dahlia Lithwick – two of the biggest proponents of the view that Court decisions will not stray far from “public opinion” – assert that no one could have known how negative the reaction to Citizens United would turn out to be. As they put it in a recent Slate piece: “[The Justices] could not have anticipated the strength of the negative public reaction to the Citizens United decision on campaign finance reform. . . . Who knew the public was so enamored of McCain-Feingold? The answer is no one—until the court showed what life without campaign finance regulations would look like.” In other words, had the Court realized what the reaction to the decision would have been, the case would have come out the other way.

Even on its own terms, though, the claim that the Court just miscalculated and would never have decided Citizens United had it known how negative the popular reaction would be seems like a desperate attempt to salvage a fundamentally flawed theory. Anyone following these debates at the time, or the general debates about the role of corporations in American democracy, knew how vehemently most of the public would react to the Court overturning decades of campaign finance law and licensing unlimited corporate election spending. Indeed, the best evidence that hindsight wasn’t necessary comes, ironically, from Friedman and Lithwick themselves. For one week after the decision in another Slate piece, they criticized the “bombshell” Citizens United decision for being dramatically out of touch with public opinion – as evidence by polls they cited even back then which showed that 76% of people believed government should have the power to limit corporate election spending. Perhaps we are supposed to think that the Justices in the majority were the only ones in the political elite who failed to understand how controversial and unpopular their decision would be.

But today’s Montana decision means we no longer have to speculate about such matters. Because if the Court made a mistake and simply miscalculated how the public would react to Citizens United, the Montana case presented the perfect opportunity, just two years later, for the Court to “correct” its mistake. Now in a position to fully appreciate “the strength of the negative public reaction” to the original decision, the Court nonetheless not only reaffirmed that decision but doubled down on it by making clear that it would tolerate no exceptions to Citizens United. That outcome comes as no surprise to those of us who believe Citizens United reflected powerfully held philosophical and constitutional convictions, whether we agree with those convictions or not. But it should put the final nail in the coffin of theories that assert the Court could have decided Citizens United only “by mistake” and, more generally, put to rest the view that Court decisions are destined to reflect “mainstream public opinion,” rather than sometimes standing forcefully against such opinion in the name of powerfully held philosophical and legal convictions. The American public might not believe in unlimited corporate speech rights in elections, but the Court’s majority does – and no amount of public backlash is going to cause this Court to back down.

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