The Supreme Court, corporate cash and the appearance of political bias

November 19, 2012
By: Charles Lamberton

Supreme Court Justice Samuel Alito recently defended the 2010 decision in Citizens United v. Federal Election Commission at The Federal Society’s annual dinner held last Thursday night, jabbing at critics of the U.S. Supreme Court’s majority opinion.  Alito said arguments can be made for overturning Citizens United, but not the popular one that boils down to one line: Corporations shouldn’t get free speech rights like a person.  “It is pithy, it fits on a bumper sticker, and in fact a variety of bumper stickers are available,” Alito told a crowd of about 1,400.

For those who don’t know, The Federalist Society was launched 30 years ago by a group of conservative students who felt embattled by liberals on the campuses of some of the nation’s most elite law schools.  The Federalist Society for Law and Public Policy Studies has grown into one of the nation’s most influential legal organizations. Its declared mission is to organize against and oppose the “orthodox liberal ideology which advocates a centralized and uniform society,” and which “dominates law schools and the legal profession.”  The Federalist Society advocates for smaller federal government, a more limited federal government, and a weaker regulatory state in that government.  The conservative group claims more than 50,000 members, an increasing number of whom work in the highest councils of the federal government. Many Justice Department lawyers, White House attorneys, Supreme Court clerks and judges are affiliated with the group. Supreme Court Justice Antonin Scalia was a close adviser to the organization while he was a University of Chicago law professor.

Not only has the Federalist Society become a source of legal talent for Republican administrations, but through its frequent on-campus seminars and forums for practicing lawyers, the group is also credited with popularizing methods of legal analysis now widely advocated by many conservatives and employed by an increasing number of judges. Theories such as originalism, which holds that the Constitution has a fixed and knowable meaning rather than an evolving meaning that should adapt to contemporary times, is an idea put forward by many Federalist members. Using that standard, some judges have challenged previous court rulings allowing broad federal control over states on regulatory and civil rights issues, and maintaining the legal wall separating church and state.

The Federalist Society and some other conservative organizations have played an  important role in changing the terms of legal and, ultimately, political debate in the United States. The growing influence of the Federalist Society has coincided with the rise of a network of conservative research organizations and public interest law firms that together have challenged hot-button issues such as affirmative action and prohibitions against publicly funded school vouchers.  Through the years, the Federalist Society, which has a multi-million dollar annual budget, has also received substantial financial backing from a network of foundations that has supported a diverse menu of conservative causes, including promoting school vouchers and investigating the personal life of former president Bill Clinton. These include the John M. Olin and Charles G. Koch foundations. Conservative activist Richard Mellon Scaife is also a major benefactor.

In our view, that Justice Alito believes it is appropriate conduct to publicly defend a decision of the Court while still serving and permit his persona to be used to raise money for a partisan, controversial enterprise speaks volumes for the disgraceful radicalization of the Supreme Court by he and his cohorts.

The real problem with Citizens United is not that it equates corporations with living, breathing, thinking human beings, it’s that it undermines democratic institutions by permitting only the moneyed few to speak and be heard in the marketplace of ideas.  In Citizens United, five movement conservatives on the Supreme Court endowed corporations with a First Amendment right to spend unlimited treasury funds on communications advocating the election or defeat of particular candidates for federal office. In reaching its holding, the majority overruled precedents that upheld restrictions on corporate spending. The majority dismissed the argument that spending restrictions prevent political corruption. Later, when President Obama correctly forecast that the majority’s holding would open the floodgates to special interest money in American politics, Justice Samuel Alito scowled, shook his head, and said “That’s not true.”

But it was true.  The Washington, D.C.-based Center for Public Integrity reported Oct. 4 that political groups which depend on corporate cash would spend $500 million in 2010, up from $300 million in the last midterms in 2006.  See, Peter H. Stone, Campaign Cash: The Independent Fundraising Gold Rush Since ‘Citizens United’ Ruling, October 4, 2010, available at So is this flood of special interest money necessarily bad?  Yes it is.  Citizens United empowers moneyed speakers with narrow, selfish interests to speak more often and more loudly than the 99.999999% of ordinary Americans, whose interest often differ from theirs. Most Americans support clean air, water and food, living wages, health care and retirement security. Corporations support deregulation, fewer government standards, lower wages and privatization and other measures that make them rich at the expense of taxpayers and voters. The ability to express ideas and political views should not vary according to wealth.  Thanks to the Supreme Court, it does.