More on Citizens United

I have a column on Citizens United in the Crossroads section in yesterday’s Milwaukee Journal Sentinel.

Taking the other side, Noah Domnitz wants to argue the the decision was “judicial activism” because it overruled existing precedent and restricted the application of long standing laws prohibiting the spending of corporate treasury money on elections. (I say “restricted” because, after Citizens United, corporations still can’t use treasury funds for contributions or coordinated expenditures.)

I disagree. Mr. Domnitz does not define “judicial activism” but seems to equate it with departure from precedent and overturning laws.

This oversimplifies the concept.

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Justice Kennedy Goes to the Movies

smith goesThose industrious enough to reach the final paragraphs of the recent opinion of the Court in Citizens United v. Federal Election Commission (2010) might have been surprised to find Justice Kennedy discussing Mr. Smith Goes to Washington (1939).  A Hollywood classic directed by Frank Capra, the film is the fictional story of a handpicked bumpkin Senator played by Jimmy Stewart, who sees the light, dramatically filibusters, and in the end teaches the Congress how to behave.  Justice Kennedy’s argument seems to be that if the campaign-related indictment of Hillary Clinton in the film titled Hillary: The Movie could be suppressed, the same fate could befall a beloved work such as Mr. Smith Goes to Washington.

The two films’ only similarity seems to be that they are indeed films.  One film is fictional, but the other attacks an actual Senator and Presidential candidate.  One is designed to entertain, but the other is designed to influence an election.  And most importantly, one is a work produced by the culture industry designed to make a profit, but the other is a work funded from corporate profits designed to change opinions. 

Are Justice Kennedy and the other members of the Supreme Court majority incredibly unsophisticated in their understanding of popular culture and politics, or is their analogy disingenuous?  Extending the inquiry, might a comparable question be posed regarding the Citizens United opinion as a whole?  The Supreme Court’s majority might be so oblivious as to think that corporations have the full panoply of First Amendment rights and that their financially self-serving broadsides are matters of free speech that enrich democracy.  Then, again, the majority might simply hope it can trick us into believing that.

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Has The Supreme Court Declared Victory for the Moles?

In a recent piece in the Harvard Journal of Law & Public Policy, I say – as has at least one other commentator –  that  campaign finance reform is like a never ending game of Whack-A-Mole. Hit one and another one pops up. Stop money here and it flows over there.

On the day that the United States Supreme Court decided District of Columbia v. Heller, I wrote on my personal blog that Heller was not the most important decision of the day. I thought that honor belonged to FEC v. Davis, a decision that struck down the “millionaire’s amendment” in the “McCain-Feingold” Bipartisan Campaign Finance Reform Act, a provision that raised contribution limits for candidates facing wealthy self-financed opponents. Davis made it clear that a majority of the Court rejected “equalization” as a rationale for the regulation of election related speech. It was my view that this would lead to the invalidation of the provision of “rescue funds” (additional money provided in response to higher levels of spending by privately financed candidates or independent groups) in public financing schemes, a position which I developed more fully in the Harvard JLPP piece.

That shoe has not yet dropped, but a size 14  flowing from the same doctrinal position did drop this morning in Citizens United v. FEC.

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