Justice Stevens and the Anti-Distortion Rationale: A Teachable Moment

I recently posted what follows on our "Thoughts on Citizens United" blog. I thought it worth re-posting here because it is an example of the kinds of points I have tried to raise in order to use Citizens United as a teaching touchstone to illustrate power and politics within the corporate system and within the democratic process. Another has been the use of technology to accentuate teaching, particularly about teaching about power in the internet age, something I've discussed previously. What follows hopefully illustrates both, and may offer a conversation starter for our panel at the SALT Teaching in a Transformative Age Conference--which is coming up soon!

From: "Thoughts on Citizens United":

Rick Hasen blogged yesterday about comments made by retired Justice John Paul Stevens concerning Citizens United. Justice Stevens' comments focused on the anti-distortion rationale rejected in Citizens United. He emphasized the idea that an actor in an election debate who has more resources than the other actors will distort the ability of the voters to make their decisions. Justice Stevens made these comments on "60 Minutes" this past weekend. You can read and see the original CBS story here. His Citizens United-relevant comments I repost from Hasen's blog:

SCOTT PELLEY (voiceover): In Citizens United, the majority gave corporations the right to spend as much as they want on political campaigns; the majority said that limiting money in politics is the same as limiting free speech.

Where does the court make a mistake in your view?

JUSTICE JOHN PAUL STEVENS: Well, you know, which mistake do I want to emphasize?

(Justice John Paul Stevens laughing)

SCOTT PELLEY: You decide.

JUSTICE JOHN PAUL STEVENS: Well, you know, basically an election is a debate. And most debates you have rules. And I think Congress is the one that ought to make those rules. And if the debate is distorted by having one side have so much greater resources than the other that sometimes may distort the ability to decide the debate on the merits. You-- you want to be sure that-- that it's a fair fight.

As I have stated during the recent forum Professor Amerson and I hosted with West Virginia University College of Law and the University of Akron School of Law, the rejection of the anti-distortion rationale represents, in my view, a departure from the Supreme Court caselaw that represented an uneasy but necessary pragmatism concerning corporate spending in elections. In his way, Justice Stevens echos this thesis quite pointedly and precisely. I will say more about this in future blogposts and other publications.