Will Roberts Court Take Fresh Look at Citizens United?

      The organizers of the independent political committee Western Tradition Partnership, Inc., made no secret of the advantages to likeminded donors in Montana who might want to keep their contributions under wraps. “There’s no limit to how much you can give,” the organizers promised in a promotional mailing two years ago, despite Montana’s concededly “strict limits” on political donations.
      The mailing offered the opportunity not only for unlimited contributions but also for unlimited privacy. “We’re not required to report the name or the amount of any contribution that we receive,” the mailer continued. “So, if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”
      The justices of the Montana Supreme Court saw the incorporated Colorado-based group’s advertised availability as a conduit for anonymous political spending as a threat to the political marketplace not to mention the state’s campaign finance laws. So, in a 5-2 decision, the court ruled on Dec. 30 that Western Tradition Partnership, along with another corporate-organized group, the Montana Shooting Sports Association, and a small drywall company, Champion Painting, were subject to the state’s century-old ban on corporate spending in political campaigns.
      The Montana justices were fully aware of the U.S. Supreme Court’s Citizens United decision in 2010, some months before Western Tradition Partnership’s mailing. In a bitterly divided 5-4 decision, the Roberts Court’s conservative majority established a First Amendment right to unlimited political spending by corporations (and labor unions) in federal elections. But Montana’s law survived, the state court’s majority ruled, because the state’s history with corrupt corporate spending — think: Anaconda Copper — gave Montana a “compelling interest” in keeping corporations out of state campaigns.
      The case is now pending at the U.S. Supreme Court, which granted a stay on Feb. 17 as requested by the renamed American Tradition Partnership (ATP). Lawyers for ATP, led by the longtime foe of campaign finance regulation James Bopp, accused the Montana court of “a blatant disregard of its duty to follow” U.S. Supreme Court decisions.
      The stay in American Tradition Partnership, Inc. v. Bullock, 11A762, was issued on Feb. 17 without recorded dissent. But in a one-paragraph statement, two of the dissenting justices in Citizens United envisioned using the case as a vehicle for re-examining the earlier ruling.
      “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n [citation omitted] make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” Justice Ruth Bader Ginsburg wrote, quoting from the majority opinion. “A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
      Even so, Ginsburg said she was voting to grant the stay “[b]ecause lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.” Justice Stephen G. Breyer joined the statement.
      A waggish Court watcher might say that critics hoping for a reversal of Citizens United with the ink on the ruling barely dry have two chances: slim and none. The Court decided the case after extensive briefing and extended arguments with full awareness of the clashing values. The ruling represented the culmination of a series of steps carefully orchestrated by Chief Justice John G. Roberts Jr. to widen the scope for political speech at the expense of campaign finance laws. And it represented a vindication for Justice Anthony M. Kennedy, the author of the majority opinion, who had dissented two decades earlier when the Court upheld bans on corporate spending in political races.
      Still, no less an observer than Linda Greenhouse, the now semi-retired New York Times Supreme Court watcher, acknowledged in the Times’s Opinionator blog that the Ginsburg-Breyer demarche gave her pause in her skepticism. Greenhouse credits Ginsburg and Breyer with inside-the-Court savvy and notes that their statement may at least “keep the public conversation going.”
      Greenhouse notes as a possible historical precedent, the FDR-era Court’s sudden about-face in the so-called Flag Salute Cases. Within only three years, the Court went in 1940 from 8-1 approval of laws requiring public school students to salute the flag to a 6-3 decision in 1943 striking down such laws as free-speech violations. The shift came about partly because of two new justices, but primarily because of the adverse reaction to the earlier ruling among opinion leaders and the public at large.
      The Flag Salute Cases, however, are the exception that proves the rule. None of the other reversals in the Court history — think: Brown v. Board of Education or Lawrence v. Texas — came about without a substantial passage of time or at least a critical change in personnel on a closely divided Court.
      Even so, the 2012 presidential campaign gives pause. The outsized role being played by independent Super PACs, fortified by corporate spending made possible by Citizens United, is evoking the same kind of negative reaction that the first of the Flag Salute Cases engendered. The Roberts majority has the votes to summarily reverse the Montana court’s decision without full briefing and argument. But justices open to the views of their colleagues — as Roberts promised in his confirmation he would be — ought to welcome the opportunity for a full reconsideration of the issues raised.

In Prop 8 Case, Roberts Would Have Key Role

      The effort to dismantle racial segregation in public schools did not begin with Linda Brown in Topeka, Kansas. It began in earnest two decades earlier with a litigation strategy crafted by the future Supreme Court justice, Thurgood Marshall, that first took on segregated state law schools and then mounted attacks on segregation in school districts in several southern and border states.
      The battle to gain marriage rights for gay men and lesbians began in earnest two decades ago with litigation by three same-sex couples in Hawaii. They won an interim victory only to see it reversed by the state’s voters and then used to generate a backlash nationwide.
      As with the campaign for racial justice, these first two decades have seen more setbacks than advances for marriage equality. But the federal appeals court’s decision last week [Feb. 7] striking down California’s anti-gay marriage initiative Proposition 8 marks a significant turning point. And the ruling could be decisive if its logic is accepted by the U.S. Supreme Court.
      On the surface, the ruling by the Ninth U.S. Circuit Court of Appeals in Perry v. Brown is narrow and limited. At trial, U.S. District Court Judge Vaughn Walker ruled definitively that denying marriage rights to same-sex couples violates both the Due Process and Equal Protection Clauses of the U.S. Constitution. On appeal, the three-judge panel led by the indomitable liberal Stephen Reinhardt declined to reach that ultimate question.
      Instead, Reinhardt wrote for a 2-1 majority in holding that the November 2008 ballot measure violated equal protection principles because it withdrew marriage rights recognized by the California Supreme Court only six months earlier for no reason other than “to lessen the status and human dignity of gays and lesbians in California.”
      That holding applies only to California. No other state has first granted and then withdrawn marriage rights for same-sex couples. Beyond the narrow holding in the Prop 8 case, however, the decision explicitly adopts findings that undermine the logic of the laws and constitutional amendments on the books in a majority of states to deny marriage to same-sex couples.
      As journalist Ari Ezra Waldeman wrote on the gay news site Towelroad, Reinhardt concluded that banning same-sex marriage does not help promote marriage by opposite-sex couples, as supporters of such bans contend. Nor does it promote “responsible procreation,” another of the goals claimed by anti-gay marriage advocates.
      In addition, Reinhardt emphatically rejected the logic of giving same-sex couples legal recognition with some term other than marriage, such as civil union or domestic partnership, at least if it comes with all the rights that marriage would entail. “The name marriage signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships,” Reinhardt wrote. Giving same-sex couples all the rights but not the designation, Reinhardt reasoned, singles them out for unequal treatment for no legitimate reason.
      In reaching that conclusion, the appeals court relied explicitly on the Supreme Court’s decision in Romer v. Evans (1996) striking down a Colorado ballot measure that barred the state or local governments from enacting laws to prohibit discrimination on the basis of sexual orientation. Justice Anthony M. Kennedy’s opinion for the majority found the law unconstitutional because it had no justification other than to treat gays and lesbians as second-class citizens.
      Legal analysts have viewed Reinhardt’s citation of Kennedy’s opinion as a barefaced attempt to gain his vote for affirmance if the Prop 8 case reaches the Supreme Court. Less cynically, the citation represents the normal path of common-law adjudication, where a principle from one case is logically applied to an analogous case later on.
      The Supreme Court followed that path in declaring racial segregation unconstitutional. In four successive cases, the court ruled that states could not segregate higher education by diverting African Americans to a law school in another state or a separate law school in the state itself or by admitting them to a graduate school but forcing them to use separate facilities. By the time of Brown v. Board of Education (1954), the logic was inexorable: legally enforced racial segregation in education could not stand.
      Even so, the justices were divided when Brown and its four companion cases were first argued. As is well known, the new chief justice, Earl Warren, worked hard after a second round of arguments to persuade reluctant colleagues to make the eventual ruling unanimous.
      The current justices are divided on gay rights. Conservatives Antonin Scalia and Clarence Thomas dissented in Romer and again in the 2003 ruling, Lawrence v. Texas, striking down laws banning gay sex. The newest conservatives, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet ruled in a case directly raising gay rights issues.
      Roberts would seem unlikely to play Warren’s role in forging a united court on same-sex marriage, yet he appreciates his responsibility for protecting the court’s public reputation. Public opinion on gay marriage is shifting, inexorably. Some polls find majority support, and all polls find strong support among young people.
      All eyes will be on Kennedy if the Prop 8 case reaches the Supreme Court. But they should also be focused on Roberts to see whether he tries to lead the court to adopt or resist the logic of the ruling and the growing acceptance of gay marriage in the public at large.

Would Supreme Court OK Obama’s Recess Appointments?

      Hard cases make bad law, it is said. And President Obama’s recess appointments to the National Labor Relations Board (NLRB) and the new Consumer Financial Protection Bureau (CFPB) while the Senate was purportedly not in recess indeed present a hard case that tests a major separation-of-powers provision in the U.S. Constitution. But it is a test that Obama is likely to win, even if — or perhaps especially if — it reaches the current Supreme Court.
      On the surface, Obama appears to be circumventing the Constitution’s requirement that he appoint “Officers” of the United States only with “the Advice and Consent of the Senate” (Art. II, sec. 2, cl. 2). As a fail-safe to ensure the government’s ability to function when the Senate was not meeting, the Framers added in the next clause that the president “shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate.” The recess appointee can serve, however, only to the end of the Senate’s “next session.”
      By its lights, the Senate was not in recess on Jan. 4 when Obama named Richard Cordray to head the new consumer agency and appointed Sharon Block, Terrence Flynn, and Richard Griffin to vacancies on the five-member NLRB. The Senate had been meeting in so-called pro forma sessions every two or three days during its winter vacation and was not scheduled to resume normal business sessions for nearly three weeks.
      In announcing the appointments, however, Obama wrapped himself in the constitutional purpose of enabling two important government agencies to function in the face of obstructionism by the Senate’s Republican minority. “The American people deserve to have qualified public servants fighting for them every day,” Obama said. GOP senators had stalled action on Cordray’s nomination to try to force changes in the new agency’s structure and powers. Republicans had also reportedly signaled that they would prevent action on filling the NLRB vacancies, even at the cost of denying the board a sufficient quorum to take any legal actions.
      Republicans and conservative legal experts denounced the action as an unconstitutional power-grab — and noted that the pro forma session tactic had been invented by then-Senate Minority Leader Harry Reid in 2007 to thwart President George W. Bush from making recess appointments. The Republicans were not mollified when, a week later, the Justice Department released the legal opinion embodying the advice given to Obama earlier that he could make the appointments.
      The 23-page memorandum, signed by Virginia Seitz as head of the Office of Legal Counsel (OLC), begins by emphasizing that the Senate had adjourned on Dec. 17 with a unanimous consent agreement to meet only in pro forma sessions until Jan. 23 “with no business conducted.” Given the “practical construction” traditionally given to the Recess Appointments Clause, Seitz concluded that Congress can prevent the president from making recess appointments “by remaining continuously in session and available to receive and act on nominations,” but “cannot do so by conducting pro forma sessions during a recess.”
      Seitz acknowledged that “substantial arguments on the opposite side” would create “some litigation risk for such appointments.” In fact, legal challenges came quickly. Business groups on Jan. 13 added a challenge to the appointments to an existing suit in federal court in Washington attacking a recent NLRB rule. Last week, owners of a New York housing complex attacked the validity of the appointments in seeking to undo an NLRB injunction to end a lockout in a pay dispute. Also last week, 40 Republican senators vowed to file a friend-of-the-court brief attacking the appointments. They did not specify which of the challenges they would join.
      The challenges face significant jurisdictional questions; but if courts reach the merits, the appointments stand a very good chance of being upheld. As noted in Seitz’s memorandum, the most recent appellate ruling on the issue, in 2004, upheld Bush’s recess appointment of former Alabama attorney general William Pryor to the federal appeals court in Atlanta. The majority in the en banc decision took a broad view of the president’s power in the face of a narrowing, literalist interpretation of the constitutional language urged by the dissenting judge.
      The Supreme Court declined to review the ruling in Pryor’s case, so there is no recent evidence of the high court’s view on the issue. On other questions of presidential power, however, the Roberts Court has definite hawkish tendencies.
      Among conservatives, Justice Antonin Scalia has been an executive branch devotee since his attacks on the legislative veto in the 1980s. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. began their legal careers as lawyers in the presidential power-expanding Reagan administration. On the left, newly appointed Justice Elena Kagan also appears to be bullish on presidential power. And the court’s strongest defender of congressional prerogatives, Stephen G. Breyer, is nevertheless a confirmed pragmatist who is likely to see through the Senate’s subterfuge of using pro forma sessions to disguise an actual recess.
      Despite its original, limited purpose, the Recess Appointments Clause has become over time a tool for the president to get around delays and obstructions in the Senate. Those who worry about abuses of presidential power may view this as bad practice — and bad law. But unless the Supreme Court sets itself against the weight of practice and judicial precedent, Obama seems likely to prevail if this hard case reaches the justices.