In the ten weeks since a Supreme Court majority opened the door further for corporate and union-led drives to sway elections, the most important critique of the Citizens United ruling is not President Obama's during the State of the Union. It's that of a former justice with a stellar Republican pedigree.
Sandra Day O'Connor, who marked her 80th birthday last month, has emerged as the most cogent--and for conservatives, the most vexing--foe of the court majority. In speeches and interviews since the 5-to-4 decision came down on Jan. 21, O'Connor has highlighted the decision's impact on precisely the political arena where its corrupting influence and corrosive effects on public trust could be deepest: the races judges themselves must run to keep their seats on state courts.
O'Connor's barnstorm tour deploring the ruling and defending judicial independence continued last week with an audience of law students, faculty, and judges in her home state of Arizona. Earlier, at Georgetown University Law Center in Washington, she chastised the court majority for signaling "that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."
O'Connor homes in on the apparent contradiction between the court's holding in Citizens United and its ruling last June in a case from West Virginia involving judicial ethics and corporate donations to a judge's campaign. In doing so, she has flagged key issues of integrity and safeguards for fairness in the justice system that not only split the high court's conservatives, but threaten to drive a wedge in the ranks of Republican voters. A February poll by ABC News found that 72 percent of Americans favor efforts to re-institute limits on corporate and union spending in elections, including 63 percent of conservatives.
With her unique credentials as a twice-elected GOP legislator, former state senate majority leader, and first woman on the nation's top bench, O'Connor adds independence, in-depth knowledge, and credibility to grassroots demands for curbing the ruling through bipartisan action in Congress. Progressives are responding to O'Connor's call by pushing bills to require shareholders' votes on corporate campaigns or deny federal contracts to corporations that drop millions into elections. But Republican candidates and interest groups are shunning it, with some trying to aim the attack back at Obama himself.
Former Ohio secretary of state Ken Blackwell, now a fellow at the religious conservative Family Research Council, recently denounced the president's criticism of the ruling as "demagoguery." Blackwell, who in 2004 championed an antigay constitutional amendment banning same-sex marriages in the Buckeye State that were already outlawed by statute, has some practice in the area. Likewise, Senator Jeff Sessions, ranking member of the Senate Judiciary committee and a Republican leader who voted last year to reject one justice by invoking "the siren call of judicial activism," has said "there has been too much alarmist rhetoric" about the ruling.
Such rhetorical plays by leading conservatives fall short in mustering indignation at the president or other critics of the ruling. But they may yet prove effective at turning reasoned debate and the legislative response to Citizens United into a partisan sideshow. This could dilute the public's concern and engagement. O'Connor, in contrast, has the potential to crystalize for Americans, across the ideological spectrum, just what troubles us most about unfettered corporate or union spending through so-called independent expenditures and why limiting its impact should be a top priority for lawmakers on both sides of the aisle.
O'Connor's resilient presence in national politics is more than a rousing wakeup call that crosses party lines. She is testament to the types of moderate, educated, Republican voters--many of them female--whom the GOP has lost since 2000. O'Connor's own vote on the high court that December helped ensure that George W. Bush claimed a majority of the Electoral College and proceeded to the presidency. Her outspokenness in retirement highlights the GOP's math and message problems.
White women voters are more numerous than white men. And even with one of their own, Sarah Palin, on a ticket in 2008, they voted for Obama by a margin 5 points higher than their male counterparts. This dynamic helped sink Republicans in a number of close races. The large Democratic majorities that resulted in both houses of Congress are crucial to reformers' hopes of counteracting Citizens United this year. If O'Connor's longtime colleague on the high court, Justice Stevens, retires this summer, Democrats' margin in the Senate may speed confirmation of a replacement before the 2010 election.
As they approach the voting this November, GOP leaders have made no secret of using health care reform as a cudgel against Democratic incumbents and challengers in a host of races. Off-year elections typically draw an older electorate than presidential years, making voters over 65, the only age bracket that McCain won handily, vital to election calculus for this fall.
GOP candidates cannot afford slippage among seniors and are counting on gains. O'Connor's high profile, as one of the last remaining exemplars of an endangered breed of good-government Republican, offers voters over 65 an unsettling reminder of the extremists who are staking claims to the party's brand and some of its ballot lines. Her appeal to independent-minded conservatives might give some pause in considering GOP candidates and could prevent the party from claiming the keys to Congress.