Justice Stevens’ Dissent: Lengthy, Passionate and at Odds with Reality

At 90 pages, Justice Stevens’ dissent in Citizens United v. FEC is long. Which is not surprising — Stevens is saying “goodbye” by expressing his final word on an important legal issue. Stevens has been a consistent voice for deference to Congress. This is sincere on his part, given his background as a prosecutor bringing corrupt pols to justice in Illinois, for which he gained fame — and ultimately a federal judgeship.

But even those sympathetic to his overall argument may be shocked to learn:

— Corporations are not members of society. Someone tell the Boy Scouts or my church, which is a registered Virginia Nonstock Corporation.

— Lawmakers have a “compelling constitutional basis, if not also a democratic duty” to restrict corporate political activity. (Really? New Hampshire legislators violate some duty to the public by NOT barring corporate expenditures in New Hampshire campaigns? Shame on them).

— in footnote 8, contending that the “express advocacy” standard has always been clear and thus does not chill speech. I need not rehearse the history of express advocacy, Faucher, Furgatch, the MCFL rulemaking here. Yeah, those were the days, huh?  No issue at all where the express advocacy line should be.

— insists that “today’s ruling makes a hash out of BCRA’s delicate and interconnected regulatory regime.” First, heh. It was so well balanced and sensible before? Second, so? This is deference lingo par excellence.

— “the Court gives no reason to think that Austin and McConnell are unworkable.” Yup. They work just fine. But they aren’t constitutional. Again with the deference.

— “The owners of a mom-and-pop store can simply place ads in their own names, rather than the store’s.” Not. Plural? Political committee?!

— note 32, asserting that media corporations can be treated differently because “[e]veryone knows and expects that media outlets may seek to influence  elections in this way.” Maybe everyone knows that about Dr. Ross Pet Food, but that company was hammered in the 1960s for making an independent expenditure. There’s is a reputational exception to 441b?

— again at note 59, Stevens attacks the skeptical view of the “history of progress” in campaign finance.  He likes Souter’s story better.  In fact Austin and McConnell are distinctive for their deference to legislative regulation of speech. You may believe that’s justified (Stevens says elsewhere it is), but to also deny their exception character is hard to support.

— Stevens waves off the issues with the use of Congress’ discretion, yet he notes that the law at issue in Bellottis was motivated by legislative interests. So for Stevens, Belotti involves a “viewpoint discriminatory statute created to effect a particular policy outcome” that deserves less deference. Well, yes. Ditto Taft-Hartley, the source of the expenditure ban held unconstitutional in Citizens United. It cuts both ways.

I understand that people are worried Citizens United will make politics dirtier. I disagree, but I respect that smart people can disagree with me.  But allowing Stevens to speak for you is a bad idea, given his lack of care in making the argument.

Allison Hayward is an assistant professor of law at George Mason University. She filed an amicus brief in Citizens United on behalf of academics and is a board member of the Center for Competitive Politics.