By Professor Steven J. Heyman
Last week, in Citizens United v. Federal Election Commission, the Supreme Court overruled its previous doctrine and declared that the First Amendment protects the rights of business corporations to run advertisements to support or oppose candidates for public office. The 5-4 decision reflected a familiar division between the Court’s conservative and liberal wings: Justice Kennedy’s majority opinion was joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, while Justice Stevens’s dissent was joined by Justices Ginsburg and Breyer and the Court’s newest member, Justice Sotomayor.
One of most striking things about the Citizens United decision is the way in which the Justices relied on the same concepts to reach diametrically opposite results. For Justice Kennedy, the decision was necessary to protect the integrity of the democratic process. By contrast, Justice Stevens insisted that the Court’s decision would gravely endanger our democracy. The academic and political reactions to Citizens United have reflected the same basic disagreement. To understand what is at stake in Citizens United, we need to understand the basis of this disagreement.