Citizens United: Justice David Souter’s dissent in the Supreme Court’s momentous campaign finance case.

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By |Posted Wednesday, May 16, 2012, at 2:29 PM ET

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The New Yorker’s Jeffrey Toobin this week revealed  juicy bits from the Supreme Court’s deliberations as it considered Citizens United, the thunderous case in which the court allowed corporations and unions to spend unlimited sums on candidate

elections, paving the way forbig-spending super PACs. Toobin told of a secret draft Citizens United dissent by Justice David Souter that has never been released—a draft that Souter, who has since retired, should now make public.

Here’s the backdrop: Before Citizens United, the court twice upheld corporate spending limits, requiring that for-profit corporations spend money on elections only through political action committees funded by executives and shareholders. The court heard the Citizens Unitedplaintiff’s challenge to those spending limits, on free-speech grounds, in March 2009, with a decision expected at the end of the term in June.In late April, Justice David Souter announced his retirement after the term’s end: Citizens Unitedwould be his last huge case. The court had an easy way to rule narrowly, without overturning the longstanding federal law barring corporations from spending their money on elections.  But at the end of June, the court handed down no ruling, instead asking for more briefing on whether it should overrule the older cases that had upheld corporate spending limits. On the day the court issued that order, I wrote Slate column speculating on the motivations: Maybe Chief Justice John Roberts and Justice Samuel Alito, who had not yet spoken on those earlier cases, did not want to overrule them on Justice Souter’s last day on the court, since he’d been anardent defender of campaign finance laws.

Toobin’s reporting, based upon unnamed sources, tells a different story: That spring, the court’s conservative majority of five was ready to overturn the earlier cases upholding limits on corporate money in elections. In response, he reports, “Souter wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” Toobin doesn’t give details, but one point Souter was likely making was that the court was violating its rule against deciding issues the parties didn’t raise and the court didn’t ask them to address. Roberts, worried that Souter’s “bridge-burning farewell” would “damage the Court’s credibility,” maneuvered to have the case rebriefed and reargued the following term, which would remove the objection that the conservative majority was sandbagging the moderate-liberal minority….

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One Comment

  1. Citizens United was also assisted by Citizen.org (who filed an amicus brief + supplemental in the case). Check out their report analyzing the effects of Citizens United (http://www.citizen.org/documents/CU-One-Year-After.pdf).

    I had the privilege of meeting their President, Robert Weissman, a few weeks ago at a conference. Public Citizen has been around since 1971 to champion anti-consumer efforts that serve only to maximize power and profits for big corporations. They litigate (all the way up to the Supreme Court), they lobby, they educate and serve as a watchdog for the little guy.