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Over the Cliff—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on August 24, 2011.

Over the Cliff
By Linda Greenhouse ’78 MSL

I fell into a Supreme Court time warp the other day. Preparing to teach a seminar this fall on the court under Chief Justice Warren E. Burger — the court of the 1970s to mid-’80s — I picked up for the first time in many years a decision from 1978, First National Bank of Boston v. Bellotti. The case is not well-known today, although it should be. It was the decision that really opened the door to corporate money in politics, leading 32 years later to a very well-known case: Citizens United.

The Bellotti decision declared unconstitutional a Massachusetts law that prohibited corporations from spending money to influence the outcome of a public referendum that did not directly concern the corporation’s own business. Two years earlier, in Buckley v. Valeo, the court had held that in the context of campaign finance, money equals speech. Now the Bellotti majority described corporate spending on public referendums as speech that lay “at the heart of the First Amendment’s protection.”

“If the speakers here were not corporations, no one would suggest that the state could silence their proposed speech,” the majority observed, insisting that speech did not lose its constitutional protection “simply because its source is a corporation.” The vote was 5 to 4. What gripped me — what made me feel like an archeologist unearthing the artifacts of a vanished civilization — was one of the dissenting opinions.

This dissenting justice did not take issue with a corporation’s status as a “person” in the eyes of the law (as Mitt Romney recently reminded a heckler at the Iowa State Fair). But corporate personhood was “artificial,” not “natural,” the justice observed. 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. “A state grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity,” the dissenting opinion continued. “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere … Indeed, the states might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.”

Noting that most states, along with the federal government, had placed limits on the ability of corporations to participate in politics, the dissenting justice concluded: “The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court.”

The dissenter was Associate Justice William H. Rehnquist. What a difference three decades makes.

There were three other dissenters from the Bellotti decision — Justices Byron R. White, Thurgood Marshall and William J. Brennan Jr., whose signature on Justice White’s dissenting opinion is worth a brief digression. A First Amendment champion of his day, Justice Brennan originally accepted the assignment to write the majority opinion in the Bellotti case, overturning the prohibition. But he changed sides within weeks, persuaded that his original instincts about the case were wrong and, as he explained to his colleagues, concerned that striking down the Massachusetts law would “inevitably call into question” efforts to deter and detect corporate corruption.

Justice Brennan’s switch — to the position that liberals occupy today — is an interesting historical footnote that I don’t believe has been previously reported. (My source is a memo from Justice Brennan to the other justices, contained in the Potter Stewart papers in Yale’s Sterling Memorial Library.) But it’s the dissenting opinion of the Burger court’s most conservative member that most clearly illuminates the dangerous path the current conservative majority is pursuing.

It is an article of faith within the Roberts court majority that of course corporations have full speech rights when it comes to public affairs — and they have something rapidly approaching full speech rights when it comes to selling their wares as well, since the doctrine hammered out during the Burger years that recognized “commercial speech” but assigned it a lower level of protection is close to collapse. It’s all just speech now.

Further, the court’s speech-protective instincts appear increasingly to serve a deregulatory agenda. A particularly egregious recent example came in June, when the court struck down a Vermont law that prohibited pharmacies from selling to data-mining companies information about the prescriptions that individual doctors were writing. Such information is of great value to pharmaceutical companies, which buy it from the data-miners and use it to select particular doctors for visits by “detailers” who, armed with knowledge of a doctor’s practice and preferences, can be more effective advocates for the company’s products. Vermont defended its law both as protecting medical privacy and preventing sales pitches for brand-name drugs when less expensive generics would do.

To the majority in Sorrell v. IMS Health Inc., the law amounted to state-imposed “viewpoint discrimination,” targeting particular “speakers and their messages for disfavored treatment.” The fact that the pharmaceutical sales force uses the information so effectively made the law all the more problematic. “The state has burdened a form of protected expression that it found too persuasive,” Justice Anthony M. Kennedy wrote for the majority. “This the state cannot do.”

In dissent, Justice Stephen G. Breyer argued that the majority was subjecting ordinary commercial speech to an “unprecedented” degree of scrutiny in a way that “threatens significant judicial interference with widely accepted regulatory activity.” Justice Breyer said the decision “opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices.” And referring to Lochner v. New York, the 1905 Supreme Court decision that summoned a constitutionally protected “right of contract” to block government regulation, he added: “At worst, it reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision making where ordinary economic regulation is at issue.”

Not only in commercial speech, but in the area of pure political speech as well, the current majority threatens to drive the First Amendment off a cliff. In June, the court struck down a voluntary public financing system for political campaigns, adopted by Arizona voters in a public referendum 13 years ago in response to corruption scandals. As an incentive to accept public financing, without fear of being outspent by a wealthy, privately financed candidate, the system offered a publicly financed candidate an extra dollar for every dollar that the opponent spent above the law’s cap on public money.

This system placed a burden on the wealthy candidate’s speech amounting to something like a fine, Chief Justice Roberts wrote for the majority in Arizona Free Enterprise Club v. Bennett. “Such basic intrusion by the government into the debate over who should govern goes to the heart of First Amendment values,” he said, concluding: “Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.”

In dissent, Justice Elena Kagan argued that the Arizona system “discriminated against no ideas and prevented no speech.” The law “fostered both the vigorous competition of ideas and its ultimate object — a government responsive to the will of the people,” she said, adding that Arizonans “deserve better” than a Supreme Court that stood in the path of electoral reform.

Earlier this month, the American Bar Association traveled north to Toronto for its annual meeting. Doing some homework for a panel I was to moderate, I came upon Section 1 of the Canadian Charter of Rights and Freedoms, added in 1982 to the country’s mid-19th century constitution. Section 1, the “limitation clause,” makes the Charter’s many guarantees subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A Canadian judge assured me that this requirement of “proportionality,” as various European constitutions with a similar principle refer to it, is invoked constantly and forms the basis for Canadian constitutional interpretation.

Proportionality strikes me as worth considering in preference to the arid absolutism that seems to have taken hold of the United States Supreme Court. I wonder what William Rehnquist would say. The old chief, who died in 2005, was a master at seeing around corners, and he lived long enough to see the prediction he made in 1978 come true.

Early in his 34-year Supreme Court tenure, Associate Justice Rehnquist held many positions far enough to the right that they could accurately be described as extreme for their day. As chief justice, he mellowed. I wouldn’t presume to say whether he changed his mind, but he did change his tone, and with some regularity placed the court’s institutional welfare above his own policy preferences.

That was most apparent in his 2003 majority opinion in Nevada Department of Human Resources v. Hibbs, which called a halt (perhaps permanent, perhaps not) to the Rehnquist court’s federalism revolution of the 1990s. In case after case, a narrow majority had invoked federalism principles to hold that states could not be required to give their employees the protections of various federal anti-discrimination statutes. The series of cases at least suggested that the core civil rights protections of the 1964 Civil Rights Act might themselves be in play. The subject of the Hibbs case was the Family and Medical Leave Act. The challenge to its application to state employees came closer to the core than any of the earlier cases. But this time, the chief justice blinked, writing a paean to the virtues of a law that, by giving both male and female employees time off to care for sick family members, protected against sex stereotyping by making clear that care-giving was not simply women’s work. Justice Ruth Bader Ginsburg still jokes that when she showed the Rehnquist opinion to her husband, he asked her whether she had written it.

The Hibbs decision can be seen as an exercise in setting reasonable limits: this far, but not over a cliff. As to whether today’s judicial conservative orthodoxy recognizes any limits, we’ll soon see.