Supreme Court Corporate Spending Decision, Climate Data and Slippage in Copenhagen Accord

On a week where I taught my first Constitutional Law class of the spring semester, the U.S. Supreme Court issuing a breathtakingly far-reaching 5-4 decision declaring that the free speech rights of corporations makes it unconstitutional for Congress to prohibit direct corporate spending on political campaigns. While Citizens United v. Federal Election Commission was not an environmental case, the Court’s decision may have more impact on the future of environmental legislation than any other decision by the Court. The decision not only invalidates century-old federal prohibitions on direct corporate spending on political campaigns, but it also strikes down similar limits in dozens of states.

The Court’s decision comes at a time when there has not exactly been a groundswell of concern that corporations have too little influence on our political process. Despite a near economic collapse exacerbated by corporate wrongdoing, the financial industry has invested enormous sums in lobbyists who to date have successfully warded off new regulatory legislation in Congress. An aggressive and expensive lobbying campaign against cap-and-trade legislation by Exxon Mobil and other corporate climate change deniers has stalled such legislation in the Senate. Now corporations will be able to threaten legislators who balk at bending to their wishes with the prospect of unlimited corporate spending directly advocating their defeat. This makes it even more important to cultivate “green” corporations to support progressive legislation, including the many companies who have endorsed cap-and-trade legislation.

The decision was not unanticipated. The Court had held the case over for reargument after it initially was briefed and argued on narrow grounds last Term. Instead of focusing on whether the McCain-Feingold legislation prohibited the showing of an advocacy film attacking Hillary Clinton, the Court asked for briefing and reargument on the much broader grounds on which it ultimately decided the case. The reargument was held in a special session in September perhaps to enable the Court to get its decision out in time to affect the mid-term elections this year. Some critics of the decision liken it to Bush v. Gore in terms of the breadth of its judicial activism and its potential impact on politics (with Republicans lauding it and Democrats aghast). The harsh rhetoric on both sides of the 5-4 divide, with dissenting Justice Stevens spending 20 minutes reading his dissent from the bench, reaffirms the sharp ideological divide on the current Court.

NASA announced this week that the ten years from 2000-2009 were the hottest decade on record with 2009 being the second hottest year since records were kept beginning in 1880. Yet this received less publicity than the announcement by the Intergovernmental Panel on Climate Change that they had made an error in forecasting that Himalayan glaciers would disappear entirely by 2035.

Further erosion in the momentum established at the Copenhagen conference in December was evident this week as UN officials confirmed that they no longer viewed January 31st as a firm deadline for countries to file their commitments to the Copenhagen Accord. UN climate official Yvo de Boer described it as a “soft deadline” and indicated that countries still could file their commitments at any time after next Sunday. Only a handful of countries have submitted their commitments to date. China, India, Brazil and South Africa are meeting this weekend to discuss their next moves.