[Congressional Record Volume 156, Number 7 (Thursday, January 21, 2010)]
[Senate]
[Pages S116-S117]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         CITIZENS UNITED V. FEC

  Mr. KAUFMAN. Mr. President, I wish to discuss today's regrettable 
Supreme Court decision in Citizens United v. the Federal Election 
Commission.
  Despite nearly 100 years of statutes and precedent that establish the 
authority of Congress to limit the corrupting influence of corporate 
money in Federal elections, the Court today ruled that corporations are 
absolutely free to spend shareholder money with the intent to promote 
the election or defeat of a candidate for political office.
  What makes today's decision particularly galling is that it is at 
odds with the testimony of the most recently confirmed members of the 
Court's majority, who during their confirmation hearings claimed to 
have a deep respect for existing precedent. Although claims of 
``judicial activism'' are often lobbed, as if by rote, at judicial 
nominees of Democratic Presidents, including Justice Sotomayor, this 
case is just

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one in a long line of disturbing cases in which purportedly 
``conservative'' justices have felt free to disregard settled law on a 
broad range of issues--equal pay, antitrust, age discrimination, 
corporate liability, and now the corrupting influence of corporate 
campaign expenditures--all in ways that favor corporate interests over 
the rights of American citizens.
  The majority opinion in Citizens United should put the nail in the 
coffin of claims that ``judicial activism'' is a sin committed by 
judges of only one political stripe. Indeed, as I have said before, 
charges of judicial activism, while persistent, are almost always 
unhelpful.
  What is especially unhelpful about calling someone a judicial 
activist is that many times it is an empty epithet, divorced from a 
real assessment of judicial temperament.
  As conservative jurist Frank Easterbrook puts it, the charge is 
empty:

       Everyone wants to appropriate and apply the word so that 
     his favored approach is sound and its opposite `activist.' 
     Then `activism' just means Judges Behaving Badly--and each 
     person fills in a different definition of `badly'.

  In other words, the term ``activist,'' when applied to the decisions 
of a Supreme Court nominee, is generally nothing more than politically 
charged shorthand for decisions that the accuser disagrees with.
  I don't mean to say that the term ``judicial activism'' is 
necessarily without content. Indeed, legal academics and political 
scientists are hard at work trying to shape a set of common 
definitions. If we want to take the term seriously, it might mean a 
failure to defer to the elected branches of government, it might mean 
disregard for long-established precedent, or it might mean deciding 
cases based on personal policy preferences rather than ``the law.''
  I think it is fair to say that, based on any of these definitions, 
the Supreme Court's current conservative majority has been highly 
``activist.''
  Let me give just a few examples. In U.S. v. Morrison, decided in 
2000, the Rehnquist Court struck down a key provision of the Violence 
Against Women Act. Congress held extensive hearings, made explicit 
findings and voted, 95 to 4, in favor of the bill. An activist Court 
chose to ignore all that and substitute its own constricted view of the 
proper role of the national government for that shared by both Congress 
and the States.
  That same year, the Court decided Kimel v. Florida Board of Regents. 
The five-Justice majority concluded that private citizens could not sue 
States for age discrimination without their consent because of a 
general principle of sovereign immunity. This is another decision that 
was, simultaneously, conservative in terms of policy outcome and 
activist in terms of judging. It was conservative because it expanded 
States' rights and contracted antidiscrimination rights. It was 
activist both because it struck down the considered judgment of 
Congress and because it was based not at all on the text of the 
Constitution but instead on the policy preferences of five Justices.
  In his dissent in Kimel, Justice Stevens said:

       The kind of judicial activism manifested in such cases 
     represents such a radical departure from the proper role of 
     this Court that it should be opposed whenever the opportunity 
     arises.

  With the addition of Chief Justice John Roberts, Jr., and Justice 
Samuel Alito, Jr., the conservative majority of the current Court has 
continued to be highly activist.
  In Leegin v. PSKS, the Court discarded 96 years of precedent in 
ruling that manufacturers may fix the prices that retailers charge. It 
elevated big manufacturers' interests over those of the consumer based 
not on any change in facts or circumstances but, rather, based on the 
Court's embrace of a particular economic theory.
  Then there is Parents Involved in Community Schools v. Seattle School 
District No. 1, in which the Court rejected local community authority 
in the area of voluntary integration of public schools. Chief Justice 
Roberts' plurality opinion for the four-person conservative bloc gave 
scant respect to a long line of desegregation precedents that afforded 
local communities discretion in this arena. Remember that this is the 
same Justice who, during his confirmation hearing, repeatedly professed 
his allegiance to stare decisis. If not for the opinion concurring in 
the judgment by Justice Anthony Kennedy, communities that want some 
modest measure of racial integration in their schools would be 
virtually powerless to act.
  That brings us back to Citizens United. In reviewing what is wrong 
with the Court's opinion in this case, it is hard to know where to 
begin. As with the cases listed above, the Court went out of its way to 
overturn settled precedent. As Justice Stevens said in his dissent, 
``The final principle of judicial process that the majority violates is 
the most transparent: stare decisis.''
  Beyond ignoring precedent, the Court could have decided this case on 
far narrower grounds. Citizens United is a not-for-profit firm that 
exists to facilitate political advocacy. Those who contribute to that 
firm do so with full knowledge of the political ideas and candidates 
that the group is likely to support. As a result, when that group 
speaks it much more closely resembles an act of collective speech by 
its benefactors than the independent political views of a fictional 
corporate ``person.'' During the Supreme Court hearing on this case, 
the attorney for Citizens United recognized this distinction and 
admitted that its arguments ``definitely would not be the same'' if his 
client were a large for-profit enterprise, such as General Motors. But 
by issuing the broadest possible reading, the majority opinion admits 
of no differences between Citizens United and General Motors.
  Even if we accept that purpose-built political advocacy corporations 
have a right to direct resources to influence elections, how do we 
apply this to larger corporations that exist to make a profit? Who 
determines what candidates General Motors supports or opposes? Is it 
the board of directors? The CEO or other officers? Employees? All of 
these groups and individuals serve the corporation for the benefit of 
the shareholders. Even so, how are we to determine what speech the 
shareholders favor? And do we care if the shareholders are U.S. 
citizens or citizens of an economic, political, or military rival to 
the United States?
  These are questions left unresolved by today's reckless, immodest, 
and activist opinion. As we move forward, my colleagues in Congress and 
I will do our best to answer them. Boardroom executives must not be 
permitted to raid the corporate coffers to promote personal political 
beliefs or to curry personal favor with elected politicians. We must 
ensure that the corporation speaks with the voice of its shareholders, 
and we must ensure that those who would utilize the corporate form to 
magnify their political influence do not do so for improper personal 
gain or to impose the will of a foreign power on American citizens.
  Today's decision does far more than ignore precedent, make bad law, 
and leave vexing unanswered questions. As noted by Justice Stevens in 
his dissent, the ``Court's ruling threatens to undermine the integrity 
of elected institutions across the nation. The path it has taken to 
reach its outcome will, I fear, do damage to this institution.''
  I share Justice Stevens' fear. I am particularly concerned that the 
decision will erode the public's confidence in its government at 
precisely the time when so many challenges--climate change, financial 
regulatory reform, health care, immigration reform, and the need to 
stimulate job creation--all call for bold congressional action. Our 
ability to meet our Nation's pressing needs depends on our ability to 
earn and maintain the public's trust.
  Earning that trust will be all the more difficult in a world in which 
undiluted corporate money is allowed to drown out the voices of 
individual citizens and corrupt the political process.

                          ____________________