Some Initial Thoughts On Citizens United.

I will defer to Mark with respect to questions of how today's big ruling will affect elections. There are, however, a few additional points worth making after an initial read of the Court's 5-4* gutting of restrictions on corporate campaign spending:

  • As I said after the oral arguments, I don't have any strong objection to the Court's ruling that the restrictions placed on showing Hillary: the Movie were unconstitutional. Such a holding would be quite defensible even under a legal framework that tried to balance First Amendment interests and the importance of fair elections.    The real question was whether the case would be decided in narrow or broad terms, and alas it's very much the latter. The Court overruled both a 20-year precedent permitting greater restrictions on corporate speech and parts of a more recent ruling upholding the McCain-Feingold Act, and has essentially held that for-profit corporations have the same First Amendment rights as individuals.
  • On a related note, it seems worth noting again that Chief Justice Roberts's purported "minimalism" -- so often touted by his defenders, including liberals who should know better -- is an empty fraud. At least in this case -- unlike previous campaign finance rulings -- the Court was willing to overturn precedents explicitly. But, certainly, this should serve as a reminder that it's farcical to claim that modern judicial conservatives stand for substantive "minimalism" or "judicial restraint."  
  • The central line of argument in Justice Kennedy's majority opinion -- that the First Amendment does not permit distinctions based on the identity of the speaker -- is superficially attractive. The problem is, there's no reason to believe that any of the justices believe it. In addition to the examples in Justice Stevens' superb dissent, consider Morse v. Frederick, a decision denying a free speech claim which all 5 of the justices in today's majority also joined. Obviously. Nobody would dispute that an ordinary citizen who unfurled a "Bong Hits 4 Jesus" banner could be sanctioned by the state; the punishment was upheld solely based on Frederick's identity as a student, which meant that his free speech rights had to be balanced against a school's interest in preventing drug use (and could be denied even if there was no plausible argument that his speech actually would promote drug use). If this kind of balancing test is permissible, surely Congress should be permitted to place some weight on the importance of fair elections when considering the First Amendment rights of for-profit corporations.   

*The parts of the law requiring that people responsible for a political ad clearly disclose their responsibility and that persons spending more than $10,000 per year on political communications file a statement with the FEC were upheld 8-1. Justice Thomas held that even these minor restrictions were unconstitutional. 

--Scott Lemieux    

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