Citizens United v. Federal Election Commission
For more than 100 years Congress and the Supreme Court carefully fashioned laws to check corporate power in elections. At first, the restraints were loose, but over the years they tightened. There were de- bates and a few dissents, but the nation never hesi- tated in its direction—until 2010 when five justices of the Supreme Court decided to reverse course. This is the story of their decision. It begins in the nation’s youth.
CONGRESS PROTECTS
ELECTIONS
In the American philosophy of self-government, free elections are an indispensable bulwark against tyranny. The founders believed all citizens should have the right to vote, that their votes should count equally, and that a majority should prevail. The rules in the Constitution bound the young nation to these ideals. The Founding Fathers also believed that if citizens were to vote wisely, they needed full, open debate on candidates and issues. The central purpose of the First Amendment, which directs that “Congress shall make no law . . . abridging the freedom of speech,” is to protect this debate.
In the early years of the republic the practice largely accorded with the ideal. The first challenge came right after the Civil War when violence and intimidation kept freed slaves from the polls. Con- gress passed two Enforcement Acts in 1870 and 1871 to protect the freed slaves’ right to vote and these were the first election laws. The Supreme Court eventually upheld “the [constitutional] power of [C]ongress to make such provisions as are necessary to secure the fair and honest conduct of an election.”1
A second challenge to “fair and honest conduct” in elections arose when industrial growth created pools of great wealth. By the 1870s railroads were already spending heavily for political favors. In 1873 Jay Gould, owner of the Erie Railroad, explained his businesslike approach to elections.
It was the custom when men received nominations to come to me for contributions, and I made them and considered them good paying dividends for the company; in a republican district I was a strong re- publican, in a democratic district I was democratic, and in doubtful districts I was doubtful; in politics
I was an Erie railroad man every time.2
As time passed, the amounts of business money in elections grew. So did public perception of corrup- tion, real and imagined. Standard Oil is reported to have given a check for $250,000 (about $6.4 million in current dollars) to reelect McKinley in 1900. In 1905 an investigation of New York insurance companies inflamed the nation. It revealed they had spent hundreds of thousands of dollars electing state and national politicians. A prominent Republican boss, when asked if these contributions bought favors, re- plied: “That’s naturally what would be involved.”3 The investigation also revealed a $50,000 ($1.2 mil- lion in today’s dollars) donation from New York Life to President Theodore Roosevelt in 1904. Roosevelt, who had said he would reject money from the trusts and fund his campaign with contributions from aver- age citizens, was so embarrassed that he called on Congress to forbid “all contributions by corporations to any political committee or for any political pur- pose.”4 In 1907 it did so with the Tillman Act, which prohibited banks, corporations, and insurance com- panies from contributing money to presidential and congressional candidates.
ELECTION LAW EXPANDS, TIGHTENS RESTRAINTS ON CORPORATIONS
The Tillman Act was the first effort by Congress to protect the institution of free elections by restricting the entry of corporate wealth. Although the Tillman Act applied only to federal elections—that is, elec- tions for president, vice president, senator, and representative—about half the states eventually passed similar laws. One was Montana, where cop- per interests had corrupted elections for sheriffs, judges, county commissioners, and state legislators. Its citizens, weary of vote buying, passed a 1912 initiative making it illegal for a corporation to “pay or contribute in order to aid, promote or prevent the nomination or election of any person . . . political party or organization.”5
The Tillman Act and its progeny in the states turned out to be more loophole than law. Corruption contin- ued. In 1925, after the Teapot Dome scandal, Congress passed the Federal Corrupt Practices Act to strengthen restrictions on campaign contributions and spending. In 1939 it passed the Hatch Act banning contributions from federal employees so that presidents could not make campaign giving a condition of holding a job. In 1947 the Taft-Hartley Act extended the ban on contri- butions to labor unions and prohibited independent expenditures by banks, corporations, and unions for messages that asked for the election or defeat of candi- dates. Congress intended to prevent these entities from going around the Tillman Act’s contribution ban and spending money from their treasuries to elect or defeat candidates on their own. President Truman vetoed the law, expressing concern that banning independent spending was “a dangerous intrusion on free speech, unwarranted by any demonstration of need.”6 Con- gress overrode the veto.
When the United Auto Workers tested the Taft- Hartley law by spending union dues on television ads in the 1954 elections, the Supreme Court upheld the independent expenditure ban in a close 5–4 de- cision. This drew a spirited dissent from Justice William O. Douglas.
Until today political speech has never been consid- ered a crime . . . [I]t costs money to communicate
an idea to a large audience . . . Yet [the Taft-Hartley law] . . . makes criminal any “expenditure” by a union for the purpose of expressing its views on the issues of an election and the candidates. Some may think that one group or another should not express its views in an election because it is too powerful . . .
But [this does not justify] withholding First Amendment rights from any group—labor or corporate.7
Although corporate spending on campaigns con- tinued to flow through loopholes and grow, for the next quarter century Congress took no action. It acted again in 1971 by passing the Federal Election Campaign Act (FECA) to compel more disclosure of contributions and expenditures. Then, following the Watergate scandal, it amended and strengthened this law in 1974 to close longtime loopholes for corporate money. It set contributions limits of $1,000 per election per candidate and $25,000 a year total giving for indi- viduals and limited their independent expenditures to only $1,000 a year. Wealthy executives could no longer contribute at will. It also set strict contribution limits for political committees. It expanded the Tillman Act’s ban on corporate contributions to include giving any- thing of value. Corporations could no longer abet campaigns with gifts of staff and services. It continued the Taft-Hartley Act’s ban on independent expendi- tures for election advocacy by corporations (see the accompanying box for the wording). But it opened a loophole. It permitted corpora- tions to set up political action committees (PACs). These PACs could not be funded by corporate treas- uries, only by individual contributions from employ- ees up to a limit of $5,000 per employee per two-year election cycle. Using this money, PACs could engage in advocacy, for example, by running television ads for or against candidates. With PACs, corporations had a political voice, one muted by the limited amounts employees would contribute, but a voice nonethe- less. With this provision Congress tried to narrow its remedy for the corruption potential in corporate spending, taking away most, but not all, of the cor- poration’s potential voice, abridging its speech only as much as necessary out of deference to the First Amendment.
The FECA also created a new agency to enforce election laws. The Federal Election Commission (FEC) is an independent regulatory agency with six commissioners, no more than three of whom can be from one political party. Candidates and commit- tees must register with it and file periodic finance reports. It writes rules, issues guidance, files re- ports from candidates and donors, and keeps records.
And to underline its resolve, Congress added criminal penalties. Now “knowingly and willfully” violating the law by an aggregate amount more than $25,000 in a year was a felony subject to imprison- ment of up to five years and a fine or both. Lesser violations were misdemeanors with sentences up to one year and fines up to triple the amount of illegal contributions or expenditures.
Election law now was more complex. Essentially, the government had created a censorship regime that, in carefully calculated ways, would protect elec- tions by prohibiting speech here, reducing it there, and allowing it elsewhere.
TESTS OF CONSTITUTIONALITY
Forthwith, opponents disputed the constitutionality of the new contribution and expenditure limits. In 1976 the Supreme Court said campaign contributions and spending were speech protected by the First Amendment. But it held that preventing “the reality or appearance of improper influence stemming from the dependence of candidates on large campaign con- tributions” was so important that it justified abridg- ing some speech rights.8 It upheld the FECA limits on individual contributions. The prohibitions on corpo- rate contributions and independent expenditures re- mained in place. However, the Court struck down limits on independent expenditures by individuals, holding that because they were not prearranged or coordinated with a campaign they did not present the same danger of real or apparent corruption. The case was Buckley v. Valeo.
After Buckley, regulation of elections under the FECA expanded. Congress twice more amended the law. The Federal Election Commission wrote rules and issued hundreds of advisory opinions about its application, supporting some methods of advocacy, denying others, creating tests, and parsing reporting requirements. Its voluminous output added to the complexity already present in election law. Candi- dates and corporations needed to consult attorneys before speaking out. Yet the regulatory scheme failed to slow the rise of money in elections, eliminate epi- sodic corruption scandals, subdue corporate influ- ence, or restore public confidence in government.
In cases coming before it, the Supreme Court generally upheld the government’s right to limit di- rect contributions and independent election spend- ing by corporations (and unions). The Michigan Chamber of Commerce brought one such case. It wanted to support a state candidate with an ad in a local newspaper. This would be an independent ex- penditure made apart from any control or direction by the candidate’s campaign. The Chamber, a non- profit corporation funded by dues from its corpo- rate members, wanted to pay for the ad with general treasury funds.
However, like the federal government, Michigan’s election law prohibited corporations from using their own funds to advocate election or defeat of a candi- date. The Chamber challenged the constitutionality of the Michigan law as a violation of its First Amend- ment speech rights. This was the first time the consti- tutionality of the government ban on independent expenditure by corporations had come before the Su- preme Court. In Austin v. Michigan Chamber of Com- merce the Court upheld the Michigan law. In doing so it invented a new justification for limiting corporate speech. The year was 1990.
When the Court inspects speech restrictions of any kind it submits them to strict scrutiny, a term with specific meaning. To survive strict scrutiny, a speech law must pass two tests. First, it must serve a compelling government interest, not simply respond to a passing need or solve a minor problem, but ad- dress a matter of highest importance. In Austin the majority found that compelling interest in the “dis- torting effects” of corporate wealth that reflects only the economic decisions of consumers and investors. It was a novel argument that implied it was the gov- ernment’s business to referee the relative strength of ideas in political debate.
Michigan’s regulation aims at . . . the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideals . . . Corporate wealth can unfairly influence elec- tions when it is deployed in the form of independ- ent expenditures, just as it can when it assumes the guise of political contributions.9
Second, a speech regulation must be narrowly tai- lored, that is, it must restrict only as much expression as is necessary to achieve its objective. By analogy, a swatter is the narrowly tailored solution for a fly on the wall, not fumigation of the building. The Michigan law passed this part of the test because it was not an absolute ban on corporate speech. Even if corporations could not spend money from their treasuries, they could still make political expendi- tures through PACs.
CLOSING THE SOFT
MONEY LOOPHOLE
The Austin decision confirmed that the ban on inde- pendent expenditures by corporations was constitu- tional. However, corporations found their way around this ban, exploiting a loophole in the FECA and several advisory opinions of the Federal Election Commission that, together, allowed them to give un- limited amounts of soft money to national party com- mittees. Soft money is simply money raised outside the rules of the FECA. Not falling under the law, it could come from corporate treasuries. Corporations began writing large checks to national party commit- tees, which gave the money to state party committees that used it to broadcast ads for and against candi- dates. These ads were flimsily disguised as “issue ads.” They purported to address broad issues but in fact promoted specific candidates. Instead of saying “Vote for Smith” at the end, they would say some- thing such as, “Call Smith, tell her what you think.”
As corporate funding for “issue ads” skyrocketed, their pretense wore thin with the American public. Congress then passed a new law to protect elections from the dangers of corruption posed by soft money. It was the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold Act after its sponsors Sen. John R. McCain (R-Arizona) and Sen. Russ Feingold (D-Wisconsin). The new law amended the FECA, banning soft money contributions to re- duce the influence of corporations. It raised contribu- tion limits for individuals to give them more influence in elections. And it attempted to reduce the influence of “issue ads” funded with corporation’s independ- ent expenditures by setting up blackout periods just before elections when they were prohibited.
In the arcane lexicon of McCain-Feingold a banned “issue ad” became an “electioneering communica- tion.” The term meant any broadcast, cable, or satel- lite communication that referred to a clearly identified federal candidate made within 60 days before a gen- eral election or 30 days before a primary and targeted to the relevant electorate (see the accompanying box). To meet the definition, the potential audience for an ad that referred to a candidate for president or vice president had to be 50,000 or more. If it referred to a candidate for the House or Senate, it had to be 50,000 or more persons in the relevant congressional district or state.10 Electioneering communications did not include news stories or editorials from media corpo- rations or ads paid for by corporate PACs, since the FECA allowed them to pay for advocacy with money raised from individual contributions, or “hard money.”
That at this point the law was confusing, even baf- fling, was the result of an underlying dynamic at work in election law. Congress was struggling to make good on its constitutional duty to ensure “fair and honest” elections. As in the past, each time it tried to shut another door for corporate money, the rules grew more complex. It is a winless, endless game between two players. Corporations, blocked by election laws, work continuously and successfully to find new loopholes. As they do, Congress has to work around the speech protections in the First Amendment to close them. Both parties are clever in- novators. The public provides an audience and fed- eral courts and regulators serve as arbiters.
Inevitably, the constitutionality of McCain- Feingold’s restrictions on speech was challenged. If the intricacy of the law was ever in question, the 1,700-page district court decision upholding its major elements confirmed that.11 Likewise, when the case, McConnell v. Federal Election Commission, was ap- pealed to the Supreme Court, the justices upheld the soft money and electioneering provisions. Their close 5–4 decision was 272 pages and contained six sepa- rate opinions.12
Years of accumulated complexity in the law in- vited uncertainty. Was something illegal or not? Ad- visory opinions rolled in waves from the Federal Election Commission. For example, a Wisconsin cor- poration that owned 22 auto dealerships was unsure if it could advertise on television before a primary. Its owner, Russ Darrow, was running for the Senate and his name was part of each dealership. It re- quested an advisory opinion from the commission on a batch of ads.
One said: “Stop into Russ Darrow Cadillac on Highway 18 in Waukesha and see what Cadillac style is really all about.” Another: “We’ll prove to you that Toyotas cost less in West Bend at Russ Darrow.” Did these ads violate the ban on election- eering communications by referring to a clearly identified federal candidate? In a five-page opinion letter the commission said no, the ads referred to a dealership, not to the candidate.13 It was a fine distinction. Had the company been wrong, it would have been guilty of a crime.
ENTER CITIZENS UNITED
Citizens United is a political advocacy group founded in 1988 to promote a conservative agenda. It is funded mainly by individuals, but about 1 percent of its budget comes from corporate contributions. Its mission is to educate the public about issues and to support conservative candidates and causes. It pro- duces a stream of partisan editorials, reports, and books with titles such as Intelligence Failure: How Clinton’s National Security Policy Set the Stage for 9/11.14
In 2008 it made a 90-minute documentary titled Hillary: The Movie to show during the presidential primaries as Hillary Rodham Clinton campaigned for the Democratic presidential nomination. The movie was very negative, containing comments such as “[s]he is steeped in controversy, steeped in sleaze” and “[s]he is the expert at not saying what she be- lieves,” and “we must never forget the fundamental danger that this woman [poses] to every value that we hold dear.”15
Citizens United released Hillary in January 2008. Seven theaters across the country showed it. The group’s Web site sold DVDs for $23.95. Since no “broadcast, cable, or satellite communication” took place, these actions were not an “electioneering com- munication” that violated the law. But Citizens United also wanted to make Hillary available on a nationwide video-on-demand channel named “Elections ‘08” and run short ads for the film on TV stations.
The group believed that the Federal Election Com- mission would define these actions as electioneering communications. It filed a complaint in federal dis- trict court asking for an injunction to stop the com- mission from enforcing the law. Then, it could show Hillary while it challenged the application and consti- tutionality of provisions in the McCain-Feingold law. The case was Citizens United v. Federal Election Commission.
IN FEDERAL DISTRICT COURT
This litigation was more than a straightforward effort to broadcast the movie. It was a principled challenge. Citizens United had two main arguments.
First, the ban on corporate expenditures for elec- tioneering communications was an unconstitutional abridgement of speech guaranteed by the First Amendment. This is a facial challenge, which the court must resolve by a ruling that a law is or is not consist- ent with the intent of the Constitution. If it is uncon- stitutional, it is struck down from any application. The district court rejected this facial challenge, point- ing out that the Supreme Court had previously up- held the constitutionality of the ban on electioneering communications.
Second, Citizens United argued that even if this provision were constitutional it was wrongly ap- plied to Hillary, which was a journalistic documen- tary that nowhere explicitly asked the audience to vote for or against Hillary Clinton. It was a genuine discussion of issues, not an electioneering communi- cation. This is an as-applied challenge, which is re- solved by determining if a constitutionally valid law is invalid in part or in a specific set of circumstances. The court rejected this as-applied argument too, not- ing that the film “is susceptible of no other interpre- tation than to inform the electorate that Senator Clinton is unfit for office.”16 So the law applied. It could not show the film.
Finally, Citizens United had also challenged cer- tain disclosure and disclaimer requirements in McCain-Feingold. It planned to televise several ads for Hillary and the law required a spoken statement naming Citizens United as the group responsible for their content. The same statement had to appear in print on-screen for at least four seconds. The group also had to include its name, address, and phone number. Two of the ads were only 10 seconds long and it argued these inclusions were an unconstitu- tional burden on speech. Here is the script of one 10-second ad.
[Image(s) of Senator Clinton on screen]
“First, a kind word about Hillary Clinton: [Ann Coulter Speaking & Visual] She looks good in a pant suit.”
“Now, a movie about everything else.”
[Film Title Card]
[Visual Only] www.hillarythemovie.com17
The district court upheld the disclosure require- ments and permitted televising of the ads.
IN THE SUPREME COURT
Citizens United appealed to the Supreme Court, which accepted the case. Oral argument before the nine justices was scheduled for March 24, 2009. During oral argument the time, usually one hour, is divided equally, giving each side a chance to make its case. Sessions are lively. The justices show little deference to the presenting attorneys, interrupting frequently to challenge them and to test their own ideas.
Theodore Olsen, a former U.S. solicitor general, represented Citizens United. The primary duty of the Office of the Solicitor General is to represent the interests of the government in the Supreme Court. He was an experienced hand, but this day he repre- sented not the government, but the group that chal- lenged its laws. “Participation in the political process is the First Amendment’s most fundamental guaran- tee,” he began. “Yet that freedom is being smothered by one of the most complicated, expensive, and in- comprehensible regulatory regimes ever invented by the administrative state.”18 He was quickly and fre- quently challenged by the Court’s liberal justices, who wanted to know why the law, in their eyes a good law, should be interpreted to allow Citizens United to broadcast Hillary: The Movie.
“So how would we draw the line?” asked Justice David Souter.19 Olsen tried to portray the film as or- dinary journalism. It was “a long discussion of the record, qualifications, history, and conduct of some- one who is in the political arena,” and not the kind of “short, punchy” advocacy ad that Congress intended to prohibit.20 The liberals were skeptical. Justice Souter characterized its contents: “She will lie about anything. She is deceitful. She is ruthless, cunning, dishonest, [will] do anything for power, will speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief. I mean, this sounds to me like campaign advo- cacy,” he said.21
Next, Malcolm L. Stewart, the government’s law- yer, rose to defend the election laws. It would not go well. He suggested that if there was “no reasonable interpretation” of a movie or ad other than “as an ap- peal to vote for or against a specific candidate” it was an electioneering communication.22 Quickly, the con- servatives rose like wasps. “If,” asked Chief Justice John Roberts, “Walmart airs an advertisement that says we have candidate action figures for sale, come buy them, that counts as an electioneering communi- cation?” “If,” replied Stewart, “it’s aired at the right place at the right time, that would be covered.”23 It made the law sound ridiculous. Then Justice Samuel Alito asked if the Constitu- tion would permit restricting access to a book with contents similar to Hillary. “I think,” replied Stewart “the Constitution would have permitted Congress to apply the electioneering communications restrictions . . . to additional media as well.”24 This was a huge blunder. The government’s position now embraced book banning, a timeless metaphor for the evils of censorship. “That’s pretty incredible,” responded Justice Alito.25 Justice Anthony Kennedy asked if sat- ellite downloads to a Kindle could be prohibited, and Stewart was forced to admit that the electioneering statute applied to satellite communications. The book ban metaphor hung over the rest of the argument like a dark cloud. It was a turning point in the case and for American election law.
Citizen’s United had a good day. At the end of the argument, the case was submitted for the Court’s opinion. However, three months later the Court sur- prised both sides with an unusual call for the case to re reargued.26 This time, it asked the parties to focus on whether the ban on independent expenditures by corporations upheld in Austin and the ban on elec- tioneering communications upheld in McConnell were constitutional under the First Amendment. This signaled that the Court’s conservatives were ready to find that the founders words in the First Amendment disallowed restrictions on independent expenditures. If so, a venerable pillar of congressional efforts to limit corporate money in elections would fall.
REARGUMENT
Reargument was held on September 9, 2009. Again, Theodore Olsen rose on behalf of Citizens United with strong, resounding, principled words. “Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment’s guarantee of free speech,” he said. “Yet that is precisely the dialogue that the gov- ernment has prohibited if practiced by unions or corporations.” The Court’s liberals tried to tone down his argu- ment. Justice Ruth Bader Ginsburg remarked that corporations were not prohibited from advocacy in elections, they could always speak using political ac- tion committees. Justice Stephen Breyer warned against making “a hash of this statute.”28 Justice John Paul Stevens said it was possible to draw lines be- tween permissible and impermissible corporate ad- vocacy. They wanted to save the law from a fatal date with First Amendment ideals. Olsen held his ground.
Next, Solicitor General Elena Kagan, a future Su- preme Court justice, rose to speak for the govern- ment. “For over 100 years,” she began, “Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judg- ment.”29 She got no farther. “Wait, wait, wait, wait,” interjected Justice Antonin Scalia. “We never ques- tioned it, but we never approved it either.”30 Techni- cally this was correct. The Supreme Court must wait for cases to come before it; it cannot make law except out of a controversy duly brought before it. And no prior case had directly raised the question of the con- stitutionality of corporate independent expenditures.
Scalia’s correction was just the beginning. The other conservatives swarmed in with sharp, dogged questions and stinging rebukes. When asked if the statute could be used to ban a book, Kagan answered, “The FEC has never applied this statute to a book.” But, scolded Chief Justice Roberts, “we don’t put our First Amendment rights in the hands of bureaucrats.”31
No evidence or argument swayed the conserva- tives. Not even the prospect of corruption phased them. Justice Alito noted that “more than half the States . . . permit independent corporate expendi- tures,” and asked, “Now have they all been over- whelmed by corruption?” “I think,” replied Elena Kagan, “the experience of some half the States cannot be more important than the 100-year-old judgment of Congress that these expenditures would corrupt the Federal system.”32 But she would win no converts this day.
THE DECISION
On January 21, 2010, the Court issued its decision, striking down as unconstitutional the bans on inde- pendent expenditures and electioneering communi- cations by corporations. It was a split 5–4 decision set forth in 187 pages with five separate opinions includ- ing a 57-page majority opinion, a 90-page dissent, and three shorter concurring opinions.
Justice Anthony Kennedy wrote the majority opinion in which Chief Justice Roberts and Justices Alito, Scalia, and Thomas joined. It began by explain- ing why no exception from the government’s ban on independent expenditures for advocacy could be made for Hillary. The film was an electioneering com- munication because there were 34.5 million cable subscribers and it would reach 50,000 or more voters. It was “in essence . . . a feature-length negative ad,” not a journalistic documentary.33 And the Court re- fused to make an exception for it just because only a small fraction of the film’s budget came from corpo- rations. It would put the Court on a road to endless drawing and redrawing of constitutional lines.
In short, the Court could not save the statute by narrowing its application “without chilling political speech, speech that is central to the meaning and purpose of the First Amendment.”34 There were too many problems. If it made an exception for Hillary it would extend a situation where speakers were often uncertain if their speech was or was not a crime un- der the law. It would take time to examine claims for exceptions, thus chilling speech just before elections. And the existing campaign finance rules, made up of 568 pages of regulations, 1,278 pages of guidance, and 1,771 FEC advisory opinions were, essentially, a complex censorship scheme that acted as a prior re- straint on speech. Put this way, the body of election law that had grown over more than 100 years was no longer the edifice supporting free and fair elections, but a menace to the founders’ ideals. From here the majority marched to its conclusion. “The law before us is an outright ban, backed by criminal sanctions,” wrote Kennedy.35 First Amend- ment protection extends to corporations. Speech has never been and should not be banned based on the identity or wealth of the speaker. Allowing corpora- tions to speak through political action committees restricts their speech because such committees are burdensome and expensive to administer. Finally, there is no evidence that independent expenditures by corporations, unlike direct contributions to candi- dates, leads to quid pro quo corruption of officials.
Therefore, the Court struck down as unconstitu- tional the part of §441(b) of the Federal Election Cam- paign Act (see the previous box) that prohibited corporate independent expenditures. That forced it to overrule the 1990 Austin decision, which had up- held the constitutionality of a ban on independent expenditures by corporations.
It also struck down §434 (see the previous box), the ban on electioneering communications added by the McCain-Feingold amendments. That required overruling the part of its 2003 McConnell decision up- holding §434’s constitutionality. However, the Court kept the disclosure and disclaimer requirements in the law that Citizens United disliked.
It was a principled opinion that sought to remove inroads on free, unlimited political debate. With their intrusive restrictions, well-meaning legislators had created an annoying censorship regime posing greater and more fundamental dangers to American democracy than any unproved evil of corruption. In consequence, corporations and unions are now free to make independent expenditures, spending as much as they wish on any form of political advertis- ing anytime. They can “speak” more freely.
THE DISSENT
Justice John Paul Stevens wrote the dissent in which Justices Ginsburg, Breyer, and Sotomayor joined. Ste- vens was the Court’s oldest justice at age 89 and its most senior, having served 35 years since President Gerald Ford nominated him in 1975. The 87-page dis- sent was the longest he had ever written. That was one measure of his displeasure with the majority.
Justice Stevens began by observing that Citizens United had been free to show Hillary as much as it wanted anytime except 30 or 60 days before elec- tions. Using its political action committee, it could even have shown it at those times. So there was no speech ban.
Next, he attacked the majority for its belief that the First Amendment prohibited government from restricting speech based on a speaker’s identity as a corporation. “Absurd,” he wrote. “Such an assump- tion would have accorded the propaganda broad- casts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied com- manders.”36 He argued that corporations are artificial entities, “not members of We the People,” and not the individuals whose self-expression the First Amend- ment was written to protect. “Corporations,” he wrote, “have no consciences, no beliefs, no feelings, no thoughts, no desires.”37 They participate in elec- tions solely based on their economic self-interest.
He believed the decision was “a radical depar- ture,” a “dramatic break from our past,” that “threat- ens to undermine the integrity of elected institutions across the Nation.” It “makes a hash” of the “delicate and interconnected regulatory scheme” created by Congress.38
It threatened to produce corruption. “Our law- makers,” he wrote, “have a compelling constitutional basis, if not also a democratic duty to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”39 There are many kinds and degrees of cor- ruption. Corporations have large sums to spend buy- ing access and buying votes. Evidence showed that issue ads bought significant influence.
The sponsors of these ads were routinely granted special access after the campaign was over; candi- dates and officials knew who their friends were . . . Many corporate independent expenditures, it seemed, had become essentially interchangeable with direct contributions in their capacity to gener- ate quid pro quo arrangements . . . politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation.4 It was an impassioned dissent, rich with the wis- dom of 35 years on the bench and he crowned it with a jewel of sarcasm: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”41
THE REACTION
President Barack Obama was displeased. “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics.”42 Sen. John McCain was “disap- pointed” and Rep. Russ Feingold saw it as “a terrible mistake.”43 The liberal press portrayed it as a disas- ter. A headline in The New York Times read, “Lobbies’ New Power: Cross Us, and Our Cash Will Bury You.”44 A columnist in the Washington Post imagined the worst.
Think of this rather persuasive moment in a chat be- tween a corporate lobbyist and a senator: “Are you going to block that taxpayer bailout we want? Well, I’m really sorry, but we’re going to have to run $2 million worth of really vicious ads against you.”45
The progressive community felt threatened. Ralph Nader predicted that “[b]ig business domination of Washington will now intensify,”46 and The Nation saw “a dramatic assault on American democracy.”47 But conservatives disagreed. Columnist George Will was glad to see that “the decades when the court was derelict in its duty to actively defend the Constitu- tion” had ended and it had overturned “a censorship regime.”48 “Freedom had its best week in many years,” editorialized the Wall Street Journal, “Congress’s long and misbegotten campaign-finance crusade has reached a Constitutional dead end.”49
THE FUTURE
The full consequences of Citizens United will not be known for years. Corporations may not react as cyn- ics fear. For instance, conspicuous support or opposi- tion for candidates could backfire. Both Republicans and Democrats buy cars, soft drinks, and computers, shop in department stores, eat at fast food chains, and select airlines and hotels. Few corporations would risk partisan labels. They may, however, push their advocacy through trade associations and front groups with innocuous names.
In his 2010 State of the Union address, President Obama looked down at the justices and, expressing distaste for their decision, called on Congress to cor- rect the “problems” the Court had created. Since then, the following actions have been considered.50
Pass a constitutional amendment. Several have been suggested including (a) giving Congress the power to regulate corporate expenditures, (b) prohibiting corpo- rations from using general treasury funds in elections, (c) prohibiting all corporate political activity, and (d) defining a corporation as an artificial entity to which First Amendment rights do not apply. To go into effect, an amendment would require two-thirds approval in both the Senate and the House and ratification by three-fourths of state legislatures within seven years.
Require shareholder approval, by majority vote, of all corporate political expenditures over a certain amount. It is likely in the wake of the decision that progressive shareholder activists will push for such a policy.
Create public funding for elections. Candidates would receive government funds for their campaigns. If these funds were sufficient, candidates could rely on them for election or reelection and would not need or fear expenditures by corporate interests. an foreign contributions. Critics say the decision would permit foreign corporations or U.S. corpora- tions with foreign owners to influence elections. Elec- tion law prohibits foreign nationals from contributing to candidates or directing expenditures, but U.S. citi- zens in foreign-owned or controlled firms could di- rect political activity.
Questions
1. WasHillary:TheMovieadisguisedcampaignador a journalistic documentary? Should the Court have created an exception in the law to permit its broadcast? What could it have done?
2. 2. Should the First Amendment protect corporate political expression? If not, where should the line be drawn for corporations between freedom and restrictions? Should First Amendment protections apply only to individual citizens?
3. 3. IfyouwereontheSupremeCourtwouldyouhave voted in the majority or joined the dissent? Why?
4. 4. After Citizens United are the rules for corporate participation in elections still too strict, about right, or too relaxed? Why?
5. 5. Should Congress legislate in response to Citizens United? If so, what should it do?
Good and Evil on the Rails
As a child Robert M. Sanchez counted the cars on passing trains. One day when he was seven he ran to an idling locomotive and the engineer took him into the wondrous machine, let him blow the horn, and, unwittingly, set his course for life. As he grew up he often visited nearby railyards, never losing his fasci- nation with trains.
After high school he drove Greyhound buses for a time and then found work with Union Pacific on a maintenance crew. After several years he worked his way up, fulfilling his dream of becoming an engineer. Soon Amtrak hired him. He and his partner, a waiter, bought a home near Los Angeles. Neighbors de- scribed Sanchez as relentlessly cheerful, buoyant, and passionate about trains. Yet trouble was there too. He was caught shoplifting at Costco, pleaded guilty, and served 90 days in jail on weekends. He argued with his partner and suggested they break up. On February 14, 2003, his partner hung himself in their garage, leaving a note that read: “Rob, Happy Valentine’s Day. I love you.”1
Two years later Sanchez became an engineer for Metrolink, a commuter rail system crossing six Southern California counties. Metrolink carries about 40,000 passengers a day on a busy 388-mile track net- work shared with freight traffic. He loved his job though he worked a tiring split shift. Soon he bought a modest suburban house where he lived with four miniature greyhounds. Again, neighbors described him as cheerful, spirited, and exhilarated by railroad- ing, but some saw him as a recluse who kept to him- self and avoided revealing his past. He abided with a dirt yard that stood out in a neighborhood of tended landscapes.2
Although friends said Sanchez found joy in his work, there were a few difficulties. He received five informal discipline letters for absences and failure to follow rules. Twice he was counseled orally about use of his cell phone while on duty. In July 2008 a suicidal man sidestepped a crossing arm and ran in front of the train he was operating. Under Metro- link’s policy he took some days off before returning to work, but, according to his family, he was forced to go back before his emotional recovery was complete.3
FRIDAY, SEPTEMBER 12, 2008
On this day, Robert Sanchez was up before dawn. He reported at 5:30 a.m. and worked four hours, rested four hours, then returned to work in the afternoon. At 3:03 p.m. he took train 111, a diesel-electric loco- motive and three passenger cars, on a commuter route out of Union Station. After five stops he ap- proached the Chatsworth station 33 miles northwest, passing a solid yellow light indicating he should be prepared to stop at the next signal. He failed to radio the dispatcher and call it out as required. It was a beautiful day there with clear skies, calm winds, and a mild 73 degrees.
After stopping for 57 seconds the train departed the station, a random assembly of 225 souls with perhaps the most troubled in the lead. At exactly 4:20:07 p.m. Sanchez shifted the throttle from the idle position to position 2 and released the train’s air brakes. As it moved, he pushed the throttle to its max- imum 8 position. Rapidly, the train increased speed to 42 mph. At 4:20:20 he sounded the locomotive’s bell and horn for the Devonshire Road crossing.4
At 4:21:03 he received a short text message from a teenage rail fan: “I would like that too. We al- ready need to meet 796. That would be best.” This was about a plan for Sanchez to sneak him aboard the locomotive later that day and let him take the controls for fun. At 4:21:23 Sanchez again activated the bell and horn for the Chatsworth Street cross- ing. By 4:21:35 the train’s speed was 54 mph and he moved the throttle back to position 4 and braked, slowing it to 44 mph in preparation for a curve. At 4:21:56 the train passed a red signal light ahead of the curve. It was a command to stop. Sanchez failed to radio in the signal and did not stop.
At 4:22:01 Sanchez sent a text in reply to the teenager: “yea . . . usually @ north camarillo.” At 4:22:02 the train passed over a power switch turned to move a local freight train coming in the opposite direction off on a siding.
The freight train was Union Pacific LOF65-12 con- sisting of two locomotives and 17 cars. It entered the curve eastbound at 41 mph as Sanchez came on at 43 mph from the west. Closing at a combined 84 mph, each locomotive became visible to the engineer in the other only when they were 540 feet apart and four to five seconds from impact. In that instant the Union Pacific engineer and the conductor, who was also in the cab, saw the Metrolink locomotive. The engineer hit an emergency brake and started to run out the cab’s rear door. Seeing there was too little time he “just stood there and watched it happen in disbe- lief.”5 The conductor froze on his feet, uttering an epithet. In the other locomotive, Sanchez did nothing with the controls.
At 4:22:23 the trains collided. The lead Union Pacific locomotive crushed Sanchez before pushing the massive bulk of his locomotive back 52 feet into the first coach. The compression killed 23 passengers. Another person died in the second coach. A sheriff’s deputy described the scene. “I saw locomotives en- gulfed in flames . . . and . . . I saw numerous people, maybe a dozen, walking in various means, I don’t know, delusioned, like they were zombies waking with various types of injuries with their hands out and saying help . . .”6 Rescue workers needed four hours to extricate all the victims from wreckage. Hos- pitals took in 102 injured including the engineer and conductor from the freight train.
THE INVESTIGATION
The National Transportation Safety Board (NTSB) was called in. The NTSB is a small, independent fed- eral agency established by Congress in 1967 to inves- tigate transportation accidents and make safety recommendations. It did a detailed analysis of the collision, interviewing witnesses, holding hearings, and examining physical evidence such as the signal switch wiring and even fasteners on the track’s wooden crossties.
An autopsy found that Sanchez had adult-onset diabetes, high blood pressure, and an enlarged heart. He met the clinical definition of obesity. And he was HIV positive. His use of prescription drugs kept these conditions under control. The Union Pacific conductor’s blood and urine tested positive for mari- juana use, though this was not relevant to the cause of the accident.
The investigation also focused on management. Metrolink is organized as a regional association with a governing board of representatives from five South- ern California counties. It was formed in 1992 to im- prove mobility and reduce traffic congestion in densely populated areas. Most of its operations are outsourced. Sanchez was hired and supervised by Connex, the subsidiary of a French corporation that ran Metrolink’s trains under a contract worth about $25 million a year.
Under the contract Metrolink retained overall re- sponsibility for its operations. As one top Connex manager noted, “We run the railroad the way they want it run.”7 However, much was delegated, includ- ing the supervision of train crews. Connex conducted the “efficiency tests” required of every railroad.8 These tests are done by supervisors who observe trains, monitor radio traffic, and analyze data from recorders in locomotives to check rules compliance. For example, they use stopwatches to make sure en- gineers blow horns for 15 seconds before entering a street crossing. They use radar guns to check train speeds. They stop trains for surprise inspections.
Connex supervisors performed about 1,000 such tests monthly. During his three years with Metrolink Sanchez had only a few failures on them. In 2006. when a rule against cell phone use on duty went into effect, a safety manager arranged for someone to call Sanchez’ number, then stopped his train and boarded the locomotive. As they were talking, Sanchez’ phone rang. The phone was not supposed to be in the oper- ator’s compartment or turned on, but it was stowed away in a bag and Sanchez said he had forgotten about it. The supervisor accepted this and simply counseled him about the policy. No more calls were made to his phone to test his compliance.
In 2007 he twice was cited for failing to call out a wayside signal. Engineers are supposed to radio the Metrolink operations center to acknowledge each lighted signal they encounter. Still, his supervisor said Sanchez was frequently tested on calling signals and his performance was “above average.”9 Earlier that year Sanchez also got a written warning for ne- glecting to light a marker at the end of his train. And about a month before the collision a conductor saw him using a cell phone as his train was ready to leave a station. Sanchez told him he knew he should put the phone away and did. The conductor reported this to their Connex supervisor, who spoke to Sanchez again about the policy and did two observations of him in the next two weeks. He was confident that Sanchez understood the policy. However, the super- visor said it was hard to enforce.
It’s almost impossible . . . [T]he engineer, first of all, is going to have the door locked. You’ve got to un- lock the door to get up on it. He’s probably going to hear you coming—he or she, and, you know, it would be almost impossible to surprise somebody, you know, to inspect it . . . [O]f all the times I’ve gone up on a locomotive, I’ve never seen anybody with a cell phone or talking on a cell phone.10
In themselves, these incidents on Sanchez’ record were not damning. The Connex safety manager had a subjective faith in him. “[He] was a competent engi- neer,” he told investigators, “[a]nd I felt comfortable putting people with him.”11 Several weeks before his final shift Sanchez even got an award for “safety and rules compliance.” However, his behavior on the day of the accident showed brazen deceit and disrespect for rules. He failed to call out two signals. And Verizon Wireless records showed he made four phone calls, sent 21 text messages, and received 21 text messages while oper- ating the train. It was habitual behavior. On each of seven working days preceding the accident he had made calls and sent and received between 30 and 125 text messages while operating trains.12 Most of the texting was with teenage rail fans. Interviews revealed he had once before let a teenager sneak on to run a locomotive.
In its accident report the NTSB stated the probable cause of the collision as Sanchez’ inattention to the red signal light because texting in violation of com- pany rules distracted him. It made one new recom- mendation, that railroads put audio and video devices in locomotive cabs to monitor train crews. It repeated a previous recommendation for installing a crash- and fire-protected cab voice recorder similar to those in commercial airliners. And it noted that an automatic system called positive train control would have intervened to prevent the collision by taking control of the train when Sanchez failed to stop at the red signal.
POSITIVE TRAIN CONTROL
Positive train control is an old idea in railroading. It had been on the NTSB’s “Most Wanted List of Trans- portation Safety Improvements” for 18 years at the time of the accident. Now, thanks to Robert Sanchez, it would become a reality. Briefly explained, it is an interconnected network of digital data and controls. It allows remote operators to take control of trains from on-board engineers if necessary. It includes these basic elements.
• Global positioning system receivers on trains to continuously track movement.
• Computers on trains that record data and send in- formation to displays in locomotive cabs about train position, speed, length, and weight; route speed limits; actual and recommended throttle and brake settings; sensor readings on cars; signal and switch settings; and more.
• • Wayside devices that monitor signals, switches, and track alignment, and can detect overheated brakes, cracked wheels, rock slides, and other problems.
• • Wireless interfaces on throttle and brake controls that allow remote control.
• • Computers and displays in railroad operations centers that show the schedule, position, speed, and control settings of each train in the network and allow remote command of train and track functions.13
Modern train control is technically complex, but the basic invention, electro-mechanical automatic braking, came around 1900. In 1920 the Interstate Commerce Commission (ICC) ordered 49 railroads to install it on passenger lines to reduce accidents and fatalities. Though effective, the systems were very expensive to put in and maintain.When interstate highways spread in the 1950s, rail traffic faced more competition from trucking. Revenues fell, tracks were abandoned, railroads failed or merged, and the ICC let companies discard the controls. After that, human error regularly led to avoidable fatalities from train collisions, overspeed derailments, and runaway locomotives in work zones. Periodic headline accidents that killed pas- sengers led to regular calls for reinstating automatic controls. However, little was done because the rail- roads argued it was unaffordable.
CONGRESS ACTS
When the National Transportation Safety Board placed positive train controls on its “Most Wanted” list in 1990 it revived the issue. Congress considered action, but retreated when the Federal Railroad Ad- ministration (FRA) did a study showing that the cost of controls far outweighed safety benefits.14 The FRA is part of the Department of Transportation. As an ex- ecutive branch agency its administrator is nominated by the president and approved by the Senate and, when appointed, reports to the Secretary of Trans- portation. Congress created the agency in 1966 to regulate railroad safety. It also administers federal programs that support railroads and promote pas- senger service, giving it close ties with the industry it regulates. Most of its 900 employees have worked for railroads.
After the early 1990s there were short bouts of Congressional interest in train controls after major rail accidents. In 2003 Congress asked the FRA for an updated benefit–cost study. It showed that the costs still far outweighed safety benefits.15 In 2005 the agency issued a rule to encourage voluntary use of train controls.16 Lacking a mandate, railroads in- stalled automatic systems on only about 4,000 track miles, most in the Northeast.
A few legislators remained interested in train con- trols. When the Metrolink crash occurred, there were two moribund bills in Congress, a House bill requir- ing controls on several high-risk routes and a Senate bill seeking only further study. Neither was headed to passage because of opposition from railroad lob- byists.
The Metrolink fatalities mobilized California’s two Democratic senators, Dianne Feinstein and Barbara Boxer, who zoomed in like superheroes on a mission. Within a week they introduced an amendment to the House bill, which had already passed, ordering rail- roads to install positive train control. In remarks on the Senate floor, Senator Feinstein grew irate and ac- cused the railroads of “criminal negligence.”
The accident happened because of a resistance in the railroad community in America to utilizing existing technology to produce a fail-safe control of trains . . . Over the years the railroads resisted, saying these systems are too expensive. Well, how expensive is the loss of human life? The cost of any system doesn’t come close to the cost of the lives that were lost this past Friday. A week later she and Senator Boxer invited Joseph H. Boardman, administrator of the FRA, to a public hearing. Senator Feinstein opened the hear- ing by saying she was upset with “lobbying behind the scenes to prevent an early date” for installation of train controls. Boardman explained to the two senators why “progress has not been faster,” namely because of “limited availability of needed radio spectrum,” concerns about “interoperability,” and “braking algorithms that need refinement.”18 These technicalities must have sounded like excuses to Senator Boxer and they drew a sharp rebuke.
What powers do you have? What’s your job? You’re sitting there saying you can’t tell them to do any- thing? . . . You have the power, you don’t want to do it, you’d rather work for the railroads.19
After the hearing Senator Feinstein called the FRA “an old boys club.” “I think they sit down and talk to the railroads,” she said. “I think they do what the railroads want.”20 In floor remarks she tried to stir her Senate colleagues to action with a moral argument.
When we know there is global positioning that can be in place to shut down the freight train and the passenger train before they run into each other and we do nothing about it, then I believe this body is also culpable and negligent.21
This idea echoes Aristotle, who held that ethical decisions are a matter of choice and only ignorance of facts or lack of freedom to act excuses a person from choosing the ethical action.22 Senator Feinstein deprived the senators of either excuse. But many Senate Republicans were unmoved and still tried to stop the bill, believing it imposed a net economic burden on society. Their effort to thwart its passage with a filibuster was defeated, and on October 1, 2008, just 19 days after the Metrolink accident, the Rail Safety Improvement Act of 2008 became law.23 The roll call was 74 to 24. Every Democrat voted for it and all the “nay” votes were Republicans. These are the main provisions of the 123-page statute.
• Mandatory installation by 2015 of positive train control on rail lines shared by freight and pas- senger trains, on “main lines” carrying more than 5 million tons of freight yearly, and on any stretch of track carrying substances such as am- monia and chlorine that pose toxic inhalation hazards.
• Rules designed to prevent crew fatigue, including prohibition of train crews working more than 12 hours a day or 266 hours a month.
A long list of new mandates for the Federal Rail- road Administration including certifying conduc- tors, monitoring locomotive radio traffic, and tudying the safety of antique locomotives used for rides at railroad museums.
• Measures to improve safety at railroad–highway crossings.
• Assistance to families of victims of passenger train accidents.
• A program of annual $50 million grants to rail- roads for safety improvements.
REGULATORS GO TO WORK
Like many laws passed by Congress, the Rail Safety Improvement Act is a mixture of specifics and gener- alities. It was very precise in dictating work-hour rules for train crews under varying circumstances, even prohibiting companies from telephoning or paging crew members at home during mandatory 10-hour rest periods. Yet it also set broad new re- quirements such as positive train control that left much to the discretion of the Federal Railroad Ad- ministration. In fact, it gave the agency so much to do it authorized hiring 200 new employees. Quickly, the agency went to work.
Within a week of the bill’s passage it issued an emergency order prohibiting use of wireless electronic devices in locomotive cabs and elsewhere on or near operating trains.24 It cited seven accidents besides the Metrolink collision where cell phone use distracted engineers. Two led to fatalities. It also listed exam- ples of unsafe behavior observed by its staff. Some of the stories were incredible.
An FRA deputy regional administrator was con- ducting an initial preemployment interview over the telephone with a locomotive engineer who was ap- plying for an FRA operating practices inspector po- sition. The deputy regional administrator heard a train horn in a two long, one short, and one long pattern and asked the candidate if he was operating a locomotive. The candidate replied that he was, and the deputy regional administrator terminated the telephone call. The candidate was not selected.25
The agency also set to work on a rule for imple- menting positive train controls. It began late in 2008 by convening a working group with representatives from 18 organizations including railroads, unions, suppliers, and the FRA. This group met five times. Between meet- ings it broke into task forces. Disagreements between participants were resolved by FRA decisions. The agency also began a new benefit–cost study.
Within six months it submitted a proposed rule to the Office of Information and Regulatory Affairs (OIRA) along with its benefit–cost study. The 167-page study revealed a stunning excess of costs over bene- fits. Depending on net present value assumptions, the costs of positive train controls over 20 years were estimated at between $10 billion and $14 billion. The safety benefits were only $608 million to $931 million. Under either assumption the cost of controls was more than 15 times the benefits.
Although OIRA’s job is to make sure regulations have a net benefit for society, its hands were tied be- cause of the congressional mandate. It approved the proposed rule and the FRA published a 79-page No- tice of Proposed Rulemaking in the Federal Register.26 This opened a 30-day comment period. Written com- ments from anyone could be entered on the Federal eRulemaking Portal mailed, faxed, or hand-delivered to the agency. During this comment period the FRA also held a one-day hearing at a Washington hotel to give railroads, unions, and state transportation offi- cials a chance to comment before regulators.
When all comments were in, the agency recon- vened its working group to review them and con- sider changes to the proposed rule. It took six more months. The final rule was published in the Federal Register on January 15, 2010, and later entered in the Code of Federal Regulations.27 It set standards for the design, functioning, certification, and maintenance of positive train control systems.
It also responded to comments. For example, large railroad companies objected to a requirement for dual displays in locomotive cabs for both engineers and brakemen. The agency responded that both were necessary to ensure safety. General Electric, which sells equipment to the railroads, objected to the agen- cy’s insistence on approving entire systems and asked it to approve individual parts or components instead. The agency rejected this suggestion as com- plicating and more expensive. Chemical shippers asked to exclude rail lines from controls if they car- ried fewer than 100 tank cars of toxic chemicals a year. The agency refused, saying that was contrary to the safety mission Congress had given it.
The final rule also revised the 20-year benefit–cost projection, making it even less favorable. Depending on net present value assumptions, the costs would be $9.6 billion to $13.3 billion and the benefits $440 million to $674 million, a ratio of more than 20:1 in either case.
WORTH IT?
America now has another expensive regulatory pro- gram, one that will raise shipping rates, consumer prices, and rail passenger fares. Railroads are now more heavily regulated in their operations and em- ployee relations. The Federal Railroad Administra- tion grows larger and more powerful. On the other hand, rail passengers are safer, and the railroads may see some efficiency gains. Was the Rail Safety Im- provement Act of 2008 justified?
Trains are dangerous. Exhibit 1 shows an annual total of between 700 and 950 railroad fatalities over the past decade, but few of them were passengers killed in train accidents—only 85 over the 10-year period. Most fatalities are trespassers who ride trains or enter track corridors. Hundreds more are motor- ists hit at crossings.
In 2009, for example, there were 713 train fatalities. Of these only three were passengers killed in accidents. Of the rest, 446 were people trespassing on tracks,28 248 were motorists at rail crossings, and 16 were on- duty railroad employees. A nationwide system of train controls might have saved the three passengers and some of the 16 railroad workers killed on duty, but would have done nothing to save the other 697 people.
In absolute numbers, motor vehicles kill far more people than passenger trains, to be exact 33,960 more in 2009, but they are safer per mile traveled. In 2009 the fatality rate per 100 million miles traveled was 6.07 for passenger trains compared with 1.10 for motor vehicles. In the FRA’s benefit–cost calculations, the safety benefits of positive train controls were $440 million to $674 million over 20 years. It assumed that train controls would lead to a 60 percent reduction in rail accident costs including casualties, train delay, emergency response, and track and equipment damage.30 A statistical life was valued at $6 million. The study also noted other potential benefits but did not monetize them. Possible business benefits for the railroads include the ability to run more trains, greater reliability, and diesel fuel savings; a possible benefit for society is reduced pollution from diesel exhaust. However, the agency con- cluded that such benefits were uncertain and, even if they appeared, would not fill the gap between costs and benefits for 20 to 25 years. For example, trains may have to run more slowly for years as systems are introduced.31
The expense to railroads is greater because final cost estimates for positive train controls were be- tween $9.6 billion and $13.3 billion over 20 years. These include primarily wayside and locomotive components and continuing maintenance. For exam- ple, the railroads must equip roughly 30,000 locomo- tives at an estimated $55,000 each. The FRA also predicted that the railroads will spend 1,729,848 hours each year completing new paperwork require- ments.32 Altogether this is a formidable cost burden and an expansion of the regulatory burden on an in- dustry that often struggles for profitability, all for a safety rule where, as the FRA concludes, “the cost-to- benefit comparison . . . is not favorable.” Congress required swift installation of train con- trols on roughly 69,000 miles of track. Suppliers such as Lockheed Martin and General Electric have to rush component design. Railroads must make mas- sive, unanticipated shifts in capital expenditures. In the past they were criticized for rejecting investments in train controls because capital returns were higher for expenditures on mergers and track equipment. Now there is no choice. One company, CSX Transpor- tation, expects to spend $1.2 billion to comply with the new rule.34
MEANWHILE AT METROLINK
Metrolink made changes after the accident. It issued an emergency order against crew use of electronic devices, added a second engineer in locomotives, in- stalled brighter signal bulbs, and reduced speeds in some zones. It enlarged its supervisory structure, adding four new managers to oversee operations and rules compliance, and it asked Connex to add a new vice president for safety. Efficiency testing of crews was stepped up. Eventually, it replaced its chief ex- ecutive and ended its contract with Connex, giving its operations to Amtrak instead.
In 2009 Metrolink installed automatic braking equipment at 43 locations along its routes. This is an interim measure until it puts positive train controls in place, which it has agreed to do by 2012, three years before the federal 2015 deadline.
It also put inward-looking video cameras in its lo- comotive cabs, making it the only railroad to respond to the NTSB’s recommendation. The Brotherhood of Locomotive Engineers and Trainmen, which repre- sents Metrolink engineers, sued but could not stop the action. The union said cameras were “punitive in nature” and breached the right to privacy found in the California constitution.35 It recommended equip- ment to jam cell phones instead, but Metrolink con- tinues to use the cameras. In 2010 Metrolink took delivery of 117 new coaches designed to protect pas- sengers by absorbing energy. Since the Chatsworth Station accident there have been no Metrolink passenger fatalities from train accidents.
Questions
• What were the causes of the Metrolink accident?
• What could have been done to prevent the acci- dent? Was management deficient? Were regula- tors deficient? Should either have been doing
anything differently?
• Is the cost of positive train control justified by the likely safety gains for passengers?
