Citizens United v. Federal Election Commission

Last Wednesday, 9 September 2009, the Supreme Court convened before their October 2009 term begins to rehear a case that was held over from the October 2008 term. Since that case was initially heard, the composition of the Court has been altered by President Obama’s nomination of Justice Sonia Sotomayor to replace retiring Justice David Souter. The case, Citizens United v. Federal Election Commission (FEC) (Docket No. 08-205), goes to the nature of our democracy and what voices should be heard in the electoral process.

There is no question that campaign finance is not the sexiest public policy arena; to many, it is the most esoteric. Citizens United v. FEC challenges the restrictions on corporate speech during elections. Some background: there have been laws regulating spending in elections (and corporations spending money in them) since 1907. It wasn’t until Watergate that Congress developed a comprehensive regulatory scheme, through the Federal Elections Campaign Act of 1973 (Pub.L. 92-225). That law had strict contribution and spending limits for donors and campaigns, respectively. In 1976, the Supreme Court handed down Buckley v. Valeo, 424 U.S. 1 (1976), which invalidated the spending limits, but upheld the contribution limits and restrictions on corporate speech.

Citizens United stems from the FEC’s refusal to allow the corporation to pay to distribute “Hillary: The Movie” prior to the primaries last year, ruling that the film constituted an electioneering communication, which corporations were prohibited from paying for within 30 days of a primary or 60 days of a general election. The plaintiffs argue that it is unconstitutional to limit “corporations’ independent spending during campaigns for the Presidency and Congress.”

This stems from a legal argument that the corporation is a person, and thus entitled to all the rights of a person under the U.S. Constitution. In 1886, the Chief Justice Morrison R. Waite said, prior to the Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), oral argument, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” The court reporter later included this in the syllabus and case history. This was eventually passed by Congress and codified at 1 U.S.C. §1. On 15 September 2009, Stephen Colbert presented this information in an amusing segment of “The Wørd.”

If the Supreme Court broadly overturns the limitations on corporate speech in elections, it will open the door for millions, if not billions, of dollars to flow into the electoral process, dwarfing the sums that citizens are able to contribute. Today, corporations (and unions) are prohibited from contributing to campaigns from their general treasuries.

Kelo v. New London

Question: Does economic development legitimately satisfy the “public use” requirement of the Constitution’s Fifth Amendment?

In 1990, the City of New London, Connecticut, had been declared a “distressed municipality” due to ongoing economic depression. In an attempt to ameliorate the economic slide by revitalizing the “blighted” area, the city created a non-for-profit New London Development Corporation, vested by the city with power to acquire land for future economic development. If market transaction failed to procure the land deemed necessary, the Corporation was at liberty to use eminent domain proceedings as stipulated in the Constitution’s Fifth Amendment. Note that the land to be taken was to be given to Pfizer, among other corporations, whose presence was anticipated to produce jobs in the region. The land itself would not necessarily be open to the public.

Susette Kelo, petitioner, and a resident of the area to be developed, owned a house by the water which had been a family holding for generations. Unlike its surroundings, the house was not blighted, but because it was within a blighted area slated for redevelopment, the City had decided that it too must be demolished. Kelo brought the Corporation to Court, arguing that its attempt to confiscate her land was unconstitutional because it failed to satisfy the “public use” clause of the Fifth Amendment which is required for government to successfully take property under eminent domain procedure.

Upon appeal, the case reached the United Stated Supreme Court. The Court upheld the notion that land cannot be transferred from A to B for B’s sole benefit. However, it did recognize that property could be transferred from A to B if B’s acquisition of the property is expected to yield future “use by the public” (like Railroads). They then wrote, that while “public use” remains a fundamental requirement of eminent domain proceedings, that it can be interpreted in a very broad sense; essentially, an expected public benefit, or “public purpose” was alone sufficient justification to take A’s land to transfer it to B, said the Court. The Court contended that it was in no position to review plans of local agencies as it lacked the intimate knowledge and conditions of a given area.

The justices continued that because the plan did not favor any party, was not a pretext to compel A to transfer his land to B for B’s benefit, and took a holistic approach to economically uplifting the area, that it satisfied a “public purpose” and did indeed constitute “public use”. The Court ruled that a “public end may be as well or better served through an agency of private enterprise than through a department of government”. However, the Court conditioned this verdict by concluding that the transfer of land cannot be implemented under the pretext of serving the public’s interest when it in fact is to serve a private one instead.

Answer: The Court, in a split 5-4 decision, found that New London Development’s plan was constitutional and that economic development, if property applied, is a form of “public benefit” which satisfied the “public use” clause of the Fifth Amendment.

Herring v. US (2009)

The Facts: On July 7, 2004, Investigator Mark Anderson learned that Bennie Dean Herring had driven to the Coffee County Sheriff’s Department to retrieve something from his im- pounded truck. Herring was no stranger to law enforcement, and Anderson asked the county’s warrant clerk, Sandy Pope, to check for any outstanding warrants for Herring’s arrest. When she found none, Anderson asked Pope to check with Sharon Morgan, her counterpart in neighboring Dale County. After checking Dale County’s computer database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed the information to Anderson and asked Morgan to fax over a copy of the warrant as confirmation. Anderson and a deputy followed Herring as he left the impound lot, pulled him over, and arrested him. A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle. App. 17–23.

There had, however, been a mistake about the warrant. The Dale County sheriff’s computer records are supposed to correspond to actual arrest warrants, which the office also maintains. But when Morgan went to the files to retrieve the actual warrant to fax to Pope, Morgan was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier. Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the sheriff’s computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mixup, and Pope contacted Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office.

(Taken from the majority opinion of the case, written by Chief Justice Roberts)