Most Important Election Law Decision: It’s Not Citizens United

In late October, I had the privilege of speaking at Chapman University’s Nexus Symposium on Citizens United – article to follow. For the four of you that haven’t heard, Citizens United held that corporations may use general treasury funds to finance independent communications that expressly advocate the election or defeat of a candidate – even during times proximate to the election.

The response to Citizens United has been, in my view, overstated. 

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What’s the Difference Between Grimm’s Fairy Tales and Postal 2?

The question about the difference between Grimm’s Fairy Tales and Postal 2 sounds like the set-up to a corny joke.  In fact, it was a subject discussed yesterday at the U.S. Supreme Court, where the justices heard oral argument on a first Amendment challenge to a California statute banning the sale of violent video games to minors.  The New York Times reports on a spirited question and answer exchange between the justices and attorneys for each side in the dispute. 

According to the report, the law imposes a $1,000 fine for selling violent video games to anyone under the age of 18.  Violent video games are defined as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a “patently offensive way,” or a way that appeals to “deviant or morbid interests” while lacking “serious literary, artistic, political or scientific value.” 

Justice Scalia’s comments and questions made it seem like he is leaning against the law, since he pointedly questioned both the definition of a “deviant violent video game,” and queried whether, since Grimm’s Fairy Tales are indeed grim, whether they, too should be banned. 

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Heck and Esenberg: What’s Worse, Campaigning or Campaign Reform?

For Jay Heck, the disease needs a cure. For Rick Esenberg, it’s doubtful there is a disease and, even if there is, the cure is worse.

If Tuesday’s “On the Issues with Mike Gousha” program at Eckstein Hall had been a meeting of foreign diplomats, the statement afterward would have described the session as “cordial but frank.”  Two of the most prominent Wisconsin voices in the debate about whether to and how to regulate money spent on political campaigning presented their views with wit and warmth, but with no masking their widely different positions.

Heck, executive director of Common Cause Wisconsin, said elections in Wisconsin and nationally had devolved over the last several decades and regulation of election spending was a matter of restoring confidence in the political system.

Esenberg, a professor at Marquette University Law School and an attorney involved in a case currently challenging regulatory plans in Wisconsin, did not accept that the damage being done by current levels of spending was so serious. Limiting free speech related to elections presents, among many things, a constitutional problem and is a bad idea that often has unintended negative consequences. 

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