by Jonathan Arogeti
Those who dissented in Citizens United v. FEC, might have had an unexpected ally in the late former Supreme Court Chief Justice William H. Rehnquist, writes Linda Greenhouse in a New York Times Opinionator blog post.
Greenhouse points to Rehnquist’s 1978 dissent in First National Bank of Boston v. Bellotti, which overturned a law that banned corporations from spending money in public referenda in a similar 5-4 split decision. (Read his dissent here.) Although he led the Court’s “federalism revolution” in the 1990s as chief justice, as an associate justice, he held the position that Greenhouse says, “[L]iberals occupy today.”
Rehnquist did not dispute corporate personhood in Bellotti, but he recognized it as “artificial” and not “natural.” Greenhouse continues, “A corporation’s rights were not boundless but, rather, limited, and the place of ‘the right of political expression’ on the list of corporate rights was highly questionable.” The benefits the state bestows upon a corporation, such as “perpetual life and limited liability,” predicted the dissent, might “pose special dangers in the political sphere.”
Rehnquist’s dichotomy of artificial and natural personhood sets the stage for a distinction between commercial and political speech. In lumping these two together, Greenhouse suggests that the Roberts Court “threatens to drive the First Amendment off a cliff.” She highlights two recent high court specific cases.
The justices, in Sorrell v. IMS Health Inc., overturned a Vermont law that forbade pharmacies from selling patient information to drug data companies. In Arizona Free Enterprise Club v. Bennett, the Supreme Court went one step further when it dismantled an Arizona public financing system for political campaigns adopted by public referendum, deeming it unconstitutional. In both these cases, “the court’s speech-protective instincts appear increasingly to serve a deregulatory agenda,” she notes.
Greenhouse cites Justice Stephen Breyer’s fear in Sorrell that the Court is “substituting judicial for democratic decision making.” Breyer echoes the 1978 dissent when Rehnquist said, “The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considered deference from this Court.”
The Robert Court’s dismantling of campaign finance regulation has done more than spur concern about First Amendment jurisprudence.
For example, Jeffrey D. Clements, a former Assistant Attorney General and Chief of the Public Protection & Advocacy Bureau in the Massachusetts Attorney General’s Office helped launch Free Speech For People. The group says democracy must be restored to the people and corporations returned to “their place as economic rather than political entities.” Clements, author of an ACS Issue Brief on Citizens United, talked with ACSblog earlier this year about the organization’s work.
Greenhouse concedes that with Rehnquist’s passing in 2005, we will never know how he would have reacted to either the Citizens United decision or to the deregulatory agenda of the Roberts Court. Greenhouse wonders, though, whether the fulfillment of his 1978 prediction would have influenced his decision.