Today’s decision in Citizens United was something of a foregone conclusion. Still, it was a bit breathtaking. The Court was obviously poised to strike down the latest Congressional restrictions on corporate political expenditures. But the Court went further and struck down even restrictions that had been upheld thirty years ago. Seldom has a majority been so eager to reach out, address a question that wasn’t presented by the parties and overrule a bevy of prior decisions. The term “judicial activism” is overused but seems entirely appropriate here.
In the end, the Court just doesn’t see any real reason for campaign finance restrictions. It may be willing to tolerate some token restrictions in the name of precedent, but basically, it views economic influence over the political process as altogether natural and appropriate.
The decision was a foregone conclusion because the key supporter for the prior precedents, Justice O’Connor, had left the Court and had been replaced by the more conservative Justice Alito. The decision rests on three key premises:
What worries people about corporate speech is exactly the opposite: They find it problematic to allow special interests with their economic clout to buy political influence. But one person’s “special interest” is another person’s “voice that best represents the most significant segments of the economy.”
Interestingly, the Court also opens the door for foreign influence over elections. The Court says that corporate restrictions might be constitutional if they were limited to “corporations or associations that were created in foreign countries or funded predominately by foreign shareholders.” Notably, this does not say “controlled by” foreign shareholders, and operating control often requires less than 50% percent ownership. So the door is definitely open for foreign controlled corporations (in fact, corporations controlled by foreign sovereign wealth funds) to spend funds to influence our elections.
What does this mean for environmental law? Corporations already have a lot of political influence; this decision will just increase that influence at the margin – at least in the short run, until corporations start feeling comfortable with multi-million dollar campaign expenditures. In the longer run, the effect will clearly be to increase the influence of special interests on the political process. Just what we needed!
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Daniel Farber | January 21, 2010
Today’s decision in Citizens United was something of a foregone conclusion. Still, it was a bit breathtaking. The Court was obviously poised to strike down the latest Congressional restrictions on corporate political expenditures. But the Court went further and struck down even restrictions that had been upheld thirty years ago. Seldom has a majority been […]
Rena Steinzor | January 20, 2010
A critical test of the Obama Administration’s commitment to reviving the Environmental Protection Agency (EPA) is teeing up behind closed doors at the White House. Once again, the Office of Management and Budget (OMB) is cast in the role of regulation killer, supported by a slew of state and other federal agencies that are polluters […]
Ben Somberg | January 20, 2010
The New York Times editorial page weighed in on coal ash today, saying: The EPA’s recommendations, which have not been made public, are now the focus of a huge dispute inside the Obama administration, with industry lobbying hard for changes that would essentially preserve the status quo. The dispute should be resolved in favor of […]
Frank Ackerman | January 19, 2010
Bjorn Lomborg has seen the future of climate policy, and it doesn’t work. In his opinion, featured Friday in the Washington Post, a binding treaty to reduce carbon emissions – the goal that was pursued unsuccessfully at the Copenhagen conference in December – would have done more harm than good. Reducing emissions enough to stabilize […]
Ben Somberg | January 19, 2010
Two developments to note on coal ash from recent days: OIRA extended its review of EPA’s not-yet-publicly-proposed regulation on coal ash. That gives it an additional 30-days from the previous Jan 14 deadline. Matthew Madia explains at The Fine Print. EPA Administrator Lisa Jackson mentioned coal ash in an appearance Thursday, saying, “There has been […]
James Goodwin | January 15, 2010
This post is second in a series on the new CPR report Obama’s Regulators: A First-Year Report Card. It’s only fair to note that when President Obama assumed office in January of 2009, he inherited a slate of dysfunctional protector agencies. Perhaps none were more dysfunctional than the Consumer Product Safety Commission (CPSC)—the tiny agency […]
Rena Steinzor | January 14, 2010
Over the weekend, the Associated Press ran a story on the results of its enterprising investigation into the toxic content of children’s jewelry imported from China. Pressed to abandon the use of toxic lead in toys and jewelry, manufacturers have apparently begun using an even more dangerous metal, cadmium, which can cause neurological damage – […]
Rena Steinzor | January 13, 2010
EPA Administrator Lisa Jackson announced Monday that the agency will propose new rules to reduce pollution from runoff from urban and suburban areas and from concentrated animal feeding operations (CAFOs). This announcement goes far in demonstrating that the EPA under President Obama is serious about its commitments to improve the quality of the nation’s waters, […]
Sandra Zellmer | January 13, 2010
My family has gotten a lot smaller lately. My mother died in 2004, my father in 2007, and my uncle in 2008. I’ve done the five stages of grief, as introduced by Elisabeth Kübler-Ross in 1969, but not exactly as she described. It’s true that I initially felt denial: “I’m a lucky person; this can’t […]