After Powell left the Court in 1987, Justice
Rehnquist had a chance to persuade his
colleagues anew. The high-water mark
of Rehnquist’s conservative stand against
the Chamber of Commerce’s “corporate
rights” doctrine came in 1990, with Austin
v. Michigan Chamber of Commerce. With a
new conservative ally from Arizona, Sandra
Day O’Connor, on the Court, Rehnquist
found himself in the majority as the Court
upheld the right of states to limit corporate
spending in elections.
Turning aside the Chamber of Com-
merce’s attack on state election spending
restrictions for corporations, the Court’s
opinion sounded much like Rehnquist’s
earlier dissents: “State law,” wrote Justice
Thurgood Marshall in an opinion joined
by Justice Rehnquist, “grants corporations
special advantages,” and states may pre-
vent corporate “resources amassed in the
economic marketplace [from] obtaining an
unfair advantage in the political market-
This Rehnquist majority did not last,
and with his death and the retirement of
Justice O’Connor, a new Court was in
place to consider the Citizens United case.
This new 5-4 arrangement resurrected
the Powell corporate rights theory with
a vengeance, casting aside Michigan
Chamber of Commerce, among other
While Citizens United may mark the tri-
umph of the Powell–Chamber of Com-
merce plan, the growing backlash of
shows that William Rehnquist may have
the last word after all. His prescient words
of dissent in 1986 are likely to long outlast
the metaphorical sleights of hand that
invent corporate “speakers,” “voices” and
“persons”: “For in a democracy,” he said,
“the economic is subordinate to the polit-
ical, a lesson that our ancestors learned
long ago, and that our descendants will
undoubtedly have to relearn many years
Americans are relearning this lesson,
as Montanans showed in November 2012.
And millions of Americans of widely varied
political viewpoints are working to overturn Citizens United and the fabrication of
corporate rights in our Constitution of the
When that day comes, William
Rehnquist’s work, at times lonely, to
remind his colleagues and the nation of the
dangers of misplaced metaphor about corporations and the Constitution will be vindicated once again.
46 ARIZONA ATTORNEY MARCH 2015
and a distinction in assessing
state versus federal laws under
the First Amendment; ( 2)
other specifics of the
Bipartisan Campaign Reform
Act at issue in McConnell; ( 3)
not agreement with—the
Court’s creation of “rights for
corporations” and an unwillingness to continue to be “the
only one still fighting that
battle.” On the last point, see
Earl M. Maltz, “I Give Up!”
William Rehnquist and
Commercial Speech, in THE
(Craig M. Bradley ed., 2006)
(discussing Rehnquist’s later
acquiescence in commercial
speech cases). On the first
point see Sheri J. Engelken,
Majoritarian Democracy in
a Federalist System: The Late
Chief Justice Rehnquist and
the First Amendment, 30
HARV. J.L. & PUB. POL’Y 695
24. Central Hudson, 447 U.S.
at 597-99 (Rehnquist, J.,
Conservative Political Action
Comm., 470 U.S. 480, 495-
96 (1985) (emphasis added).
18. 479 U.S. 238, 266-67 (1986).
19. Id. at 268-69.
20. Pacific Gas & Elec. Co. v.
Public Util. Comm’n of
California, 475 U.S. 1, 32-34
(1986) (Rehnquist, J.,
21. Memorandum, June 12, 1980.
22. Austin, 494 U.S. at 658-659.
23. Citizens United also over-
turned McConnell v. Fed.
Election Comm’n, 540 U.S.
93 (2003). Chief Justice
Rehnquist joined Justice
Kennedy’s dissent in
McConnell, though his
separate dissenting opinion
made no note of the corporate
and union restrictions that
McConnell upheld, nor
offered any explanation to
suggest that Rehnquist had
changed his mind about his
views in earlier cases such as
Austin, National Right To
Work, and Massachusetts
Citizens For Life. Possible
explanations may include: ( 1)
Rehnquist’s federalism views
1. At a December 1971 event
celebrating Powell’s Supreme
Court appointment, Philip
Morris CEO Joseph Cullman
presented Powell with a judicial robe as a gift from the
company, declaring that “it
is customary for friends and
associates to present a newly
appointed Supreme Court justice with his robes of office.”
The record of this event is
contained in documents
revealed by the conspiracy and
racketeering litigation against
the cigarette industry successfully prosecuted by the U.S.
Department of Justice and
state Attorneys General.
2. The Powell memo is available
3. Powell notes, Feb. 24, 1977.
4. First National Bank of Boston
v. Bellotti, 435 U.S. 765, 825-
6 (1978) (Rehnquist, J.,
5. Memorandum to the Justices
From William Brennan, Dec.
1, 1977. Linda Greenhouse,
the former Supreme Court
reporter for the New York
Times and author, first report-
ed Justice Brennan’s change
of mind in Bellotti in 2011.
6. Letter from Justice Powell to
Justice Rehnquist, April 17,
7. Connecticut Life Ins. Co. v.
Johnson, 303 U.S. 77, 89-90
(1938) (Black, J., dissenting).
8. Bellotti, 435 U.S. at 826 and
9. Memorandum to the Justices,
Dec. 6, 1977.
10. Memorandum from the Chief
Justice, March 11, 1978.
11. Bellotti, 435 U.S. at 820-21
(Rehnquist, J., dissenting).
13. Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n
of N. Y., 447 U.S. 557, 588
(1980) (Rehnquist, J.,
14. 447 U.S. at 589.
15. 459 U.S. 197 (1982).
16. Id. at 210-11, citing
California Medical Ass’n v.
FEC, 453 U.S. 182, 201
17. Fed. Election Comm’n v. Nat’l
A previous version of this article was originally published on the blog of the American Constitution Society for Law and Policy ( www.acslaw.org/acsblog). Reprinted with permission.