Legal News

What the Smart-erotti Are Saying About Citizens United

By Ashby Jones

The legal story of the week, if not the month or year so far, concerns Thursday’s Supreme Court ruling in Citizens United. In fact, we’d say that there’s a better than average chance that once you’re finished talking Colts/Jets with folks this weekend, conversation will turn to the ruling that may have fundamentally changed American politics forever (or unless and until the court revisits the issue).

With that in mind, below are a handful of talking points you might refer to, if needed, from around the blogosphere. For background, click here for our recap of the decision.

The WSJ’s editorial board:

Freedom has had its best week in many years. On Tuesday, Massachusetts put a Senate check on a reckless Congress, and yesterday the Supreme Court issued a landmark decision supporting free political speech by overturning some of Congress’s more intrusive limits on election spending. In a season of marauding government, the Constitution rides to the rescue one more time.

The NYT’s editorial board:

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court's conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.

Harvard’s Lawrence Lessig, at the Huffington Post:

Whatever else one believes about the Supreme Court’s decision striking down limits on corporate speech in the context of political campaigns, there’s one thing no credible commentator could assert: That money bought this result. We can disagree with the Court’s view of the Framers (and I do); we can criticize its application of stare decisis (as any honest lawyer should); and we can stand dumbfounded by its tone-deaf understanding of the nature of corruption (as anyone living in the real world of politics must). But we cannot say that somehow, the influence of money has produced this extraordinary result. The Court jealously guards its own institutional integrity. . . . Thursday’s decision by the Supreme Court denies to Congress the same institutional integrity enjoyed by the Court. The vast majority of Americans already believe that money buys results in Congress. This Court’s decision will only make that worse.

Slate’s Dahlia Lithwick:

[Justice] Kennedy’s visceral terror of speech bans (the word “ban” appears 29 times in his 57-page opinion) and “censorship” seems to override any sort of temperate assessment of either the facts of the case before him, the lack of substantial record in the lower courts, the significance of the cases he is overruling, or the consequences of today’s opinion. Perhaps because this is the same Anthony Kennedy who was so exquisitely sensitive to the corrupting influence of money on public confidence in judicial elections in the Caperton case about judicial corruption, it’s hard to comprehend what it is about unlimited corporate contributions that so moves him.

Slate’s Glenn Greenwald:

Critics emphasize that the Court’s ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it’s not really relevant. Either the First Amendment allows these speech restrictions or it doesn’t. In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).

One of the central lessons of the Bush era should have been that illegal or unconstitutional actions — warrantless eavesdropping, torture, unilateral Presidential programs — can’t be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The “rule of law” means we faithfully apply it in ways that produce outcomes we like and outcomes we don’t like.

Rick Hasen, author of the Election Law Blog, writing at Huffington Post:

Today’s Supreme Court opinion marks a very bad day for American democracy, and one that was totally avoidable. Make no mistake: the Supreme Court had ample ways (I count at least six) to have avoided deciding the issues in the case. The case will affect not just Congress, but also state and local races, including judicial elections. In no elections will corporate or labor union spending limits be constitutional.

Institute for Justice’s Paul Sherman, writing at the National Review’s Bench Memos:

The ruling represents a tremendous victory for free speech and a serious blow to proponents of campaign-finance "reform," who have roundly denounced the ruling and have all but predicted the downfall of the Republic as a result. But the reformers' rhetoric is just that; the Court's ruling will simply result in a more diverse mix of political speech, and that is a good thing for American democracy.

The ruling in Citizens United is a straightforward application of basic First Amendment principles: "When Government seeks to use its full power . . . to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."

That’s it, LBers. Have a good weekend. Go Colts, Geaux Saints!

Full post as published by Law Blog - WSJ.com on January 22, 2010 (boomark / email).