The Catholic University of America
Nov 1 2010

When the Referee Becomes an (Unwitting) Player: Elections and the U.S. Supreme Court

Posted by Matthew Green at 12:52 PM
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- Categories: Government & Civil Society

Have five people decided this year's midterm elections?

The five I refer to, of course, are the five Justices of the Supreme Court who, in the landmark case Citizens United v. Federal Election Commission earlier this year, decided that limits on corporate and union election spending were unconstitutional.  The impact of the decision on campaign finance has been dramatic.  In mid-October, the non-partisan Center for Responsive Politics reported that over $160 million had been spent by these groups so far - nearly three times what was spent in 2006 - and the amount is growing by the day, most of it on behalf of Republican candidates for office.

To some, therefore, the answer to the question I've posed is "of course."  But it's a harder question to answer than one might think.  Money is often spent on behalf of candidates already likely to win, and Republicans have been favored in many races for months.  Also, as the Center points out, corporations and unions had other ways of funding campaigns before the Citizens United decision, such as "bundling" checks from individual members.

What matters much more than how one answers that question is that the question can be posed at all.  Regardless of the constitutional merits of the decision, Citizens United has put the Supreme Court at the crosshairs of politicians and parties, threatening to pull the Court deeper into the rumble-tumble world of partisan politics - with potentially profound effects on both American politics and the Court's independence and legitimacy.

There are three reasons for this.  The first the public's perception of the Citizens United decision, which is both widespread and negative.   In February, shortly after the Court's decision, a Washington Post-ABC poll showed a whopping 80% of respondents opposed to unlimited spending by unions and corporations (with only 2% having no opinion).  I myself have been surprised at how many of my students know about the decision, let alone the number who don't like it.

This unpopularity alone could threaten the Court's legitimacy, but a second feature of the decision encourages politicians to make the institution a target of their wrath:  its obvious and immediate impact on elections.  If Republicans do well in next month's elections, Democrats can easily construct a new narrative in which the Court is seen as willingly influencing the conduct, if not results, of elections when it benefits the G.O.P.  Arguably, Citizens United marks the second time in a decade that the Court could be credited with influencing an election (the first being Bush v. Gore).

Even if Democrats feel it is unfair or poor form to call the Court a Republican institution, they have an easy alternative:  question the independence, if not the legitimacy, of Republicans who won in November with big funding behind them.  Not only does this implicitly frame the Court as helping one party over the other, but it forces Republicans to either defend it (thus further tying the two together) or redirect that criticism towards the Court itself.  Fair or unfair, in other words, the Supreme Court has risked being painted with a partisan brush.

Third and finally, the narrow margin of the decision further exposes the Supreme Court to political attack.  This is not the first time the Court has overturned precedent (not to mention state and federal laws) by a single vote.  But narrow decisions have been a growing trend in the Court in recent decades.  In the late 1960's, fewer than 10% of cases per year were decided by a one-vote margin; last year, it was close to 20%, and three years ago, it reached a fifty-year high of 33%.

Why do narrow decisions matter?  As Edward Lazarus noted in his excellent book on the Court, Closed Chambers, the passage of major precedent-setting decisions by only five votes sends a signal that a change in a single judge (or a single judge's beliefs) is all that is needed to reverse the outcome.  This encourages partisans to treat the institution as yet another battlefield where each Court nominee is the subject of political warfare and the principle of stare decisis ("let the decision stand") means nothing.

Seventy-five years ago, the Supreme Court injected itself into national politics by overturning many of FDR's New Deal initiatives.  Though the Court survived Roosevelt's subsequent effort to "pack" it, the battle put the Court on the defensive, and it took some time for the Court to recover its sense of independence and power.  By making such a profound, unpopular, and far-from-unanimous decision, the nation's highest court has risked putting itself back into an unwelcome spotlight - and an institution for politicians to target for years to come.

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