A Right to Speak and Spend
Lastly, Justice Kennedy confronted the decision’s potential effect on judicial elections.101 Specifically, the Court discussed its prior decision in Caperton v. A.T. Massey Coal Co.102— which required judicial recusal “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”103 Litigants in Citizens United argued that Caperton required the Court to uphold the electioneering communication restrictions in McCain-Feingold.104 The Court dismissed this argument. The Citizens United Court reasoned that Caperton ‘s holding was limited to judicial recusal. It did not follow, the Court held, that the government could ban political speech ex ante in order to prevent the risk of judicial recusal ex post.105 However, the Court did not further indicate the application—or lack thereof—the decision would have on future judicial elections.
2. C oncurring O pinion: C hief Justice Roberts Chief Justice Roberts, along with Justice Alito, joined the majority opinion in full, but wrote separately to address the issue of stare decisis.106 Although noting that the principles of deference to prior decisions and constitutional avoidance were appropriate goals for the Court to pursue, Chief Justice Roberts viewed the case as presenting an unavoidable constitutional question that required the Court to overrule its prior decision in Austin.107 Chief Justice Roberts additionally made reference to media corporations, and the consequence of Austin’s holding that corporate political speech is deemed less protected than speech originating from natural persons.108 His opinion, like Justice Kennedy’s, took little solace in the fact that media corporations were currently exempt from these restrictions.109 Rather, Chief Justice Roberts wrote off the media exemption as “simply a matter of legislative grace” and maintained it made no constitutional difference “that the law currently grants a favored position to media corporations” given the “danger[s] inherent in accepting a theory that would allow government restrictions on their political speech.”110
3. C oncurring O pinion: Justice S calia Justice Scalia, joined by Justices Thomas and Alito, joined the Courts opinion but wrote to address Justice Stevens’ dissent—specifically on the issue of the original understanding of the First Amendment.111 Justice Scalia maintained that, as a historic matter, there was no evidence to suggest that corporations were not entitled to free speech protections.112 Justice Scalia additionally engaged in an analysis of the First Amendment’s Press Clause in support of his argument that corporations, like natural persons, deserved speech rights.113 Specifically, he stated that the Press Clause has always been understood to provide protections to publishers—many of whom are for-profit businesses.114 Justice Scalia stated “the no 101. Id. at 910. 102. 556 U.S. 868 (2009). 103. Id. at 884. 104. Amicus brief for Justice at Stake at 2 Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). 105. Citizens United, 130 S.Ct. at 910. 106. Citizens United, 130 S.Ct. at 917 (Roberts, C.J., concurring). 107. Id. at 918 (Roberts, C.J., concurring). 108. Id. at 923 (Roberts, C.J., concurring). 109. Id. 110. Id. 111. Id. at 924 (Scalia, J., concurring). 112. Id. 113. Id. at 927 (Scalia, J., concurring). 114. Id.
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