It’s somewhat delicious, in fact, to imagine the scene in the Senate Judiciary Committee if a Clinton Supreme Court nominee expresses — as the four dissenting justices did at the time — disagreement with Citizens United. Are Republican senators really going to go to the mat during the confirmation process in defense of a Supreme Court decision that most of their own constituents hate. ?
The effort will be — as it is already in some quarters of the right — to depict anyone who opposes Citizens United as an opponent of free speech. That’s a characterization easily deflected. The problem with Citizens United, it has always seemed to me, is not whether corporations have a right to spend money to express their political views. They do, and they did under decades-old Supreme Court precedent before Citizens United, although many of the decision’s critics don’t seem to realize that fact. The mantra of “money isn’t speech” is too simplistic a critique; speech without money is speech that no one is going to hear.
The problem is the legal reasoning the court employed in opening the floodgates to unlimited corporate spending. The only rationale the First Amendment permits for limiting political spending, the court said, is the prevention of corruption or the appearance of corruption. Fair enough, but then the Citizens United majority made its key move in defining corruption. Justice Anthony M. Kennedy’s majority opinion said “corruption” meant only “quid pro quo” corruption — extracting or giving a promise in exchange for a political expenditure. In a word, bribery.