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In Defense of Citizens United

John on October 20, 2010 at 8:14 am

Hat tip to Melissa Clouthier for the head up on this story via Twitter. We’ve all been hearing a lot about the Citizens United case. For months now it has been bubbling under the surface. Remember this:

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That was eight months ago. And the Obama administration has ratcheted up this line of attack in the last week. His entire administration is now claiming that democracy is being stolen (gasp!).

The Yale Law Journal has a sensible response to all this nonsense which is worth your time. Here’s a bit of it:

The Citizens United ruling is rooted in the First Amendment. That is its basis, its only basis. But critics of the ruling often chose not to respond to—sometimes not even to mention—Justice Kennedy’s First Amendment analysis in the majority opinion at all, as if the Court had simply ruled that Congress had passed a law with which it emphatically disagreed and would therefore strike down. President Obama, a former professor of constitutional law, denounced the ruling when it was released and then again in his State of the Union speech without even adverting to the Court’s reliance on the First Amendment. The Nation magazine published a five-page editorial condemning the ruling and urging adoption of a constitutional amendment to overturn it without even mentioning its First Amendment roots. And E.J. Dionne, Jr., in five columns published in the Washington Post both before and after the ruling, first warned of and then denounced the Court’s “astonishing display of judicial arrogance, overreach and unjustified activism.” He referred to the First Amendment only once in the five articles, characterizing “[d]efenders” of the ruling as “piously claim[ing] it’s about ‘free speech.’”

It is not as if the facts of the case could lead someone even vaguely knowledgeable about the First Amendment to recoil from its citation. Citizens United is a conservative group partially funded by corporate grants. It prepared a documentary denouncing in the harshest terms then-Senator Hillary Clinton when she was considered the front-runner for the Democratic nomination for President in 2008. The organization sought to show the documentary on Video-on-Demand during one of the late-campaign “blackout periods” during which the Bipartisan Campaign Reform Act of 2002 (BCRA) banned independent expenditures by corporations or unions supporting or opposing the election of candidates on television, cable, or satellite. To rely on the First Amendment to defend the speech of an ideologically charged group that sought to affect the choice of the next President hardly seems a stretch.

Nor had Justice Kennedy conjured up a First Amendment argument not before articulated. The first law to bar corporations and unions from using their funds to make independent expenditures designed to affect federal elections was the Taft-Hartley Act, adopted in 1947. Contributions by corporations to candidates had been barred since 1907, but not until the adoption of Taft-Hartley were independent expenditures—that is, money spent supporting a candidate in a manner uncoordinated with him or her—deemed criminal. From its adoption, the constitutionality of the statute was viewed as dubious. President Harry S. Truman vetoed the bill on the ground that it was a “dangerous intrusion on free speech.”

The rest of the piece gets into some of the specific outcomes the Justices were trying to avoid in this case, i.e. book banning during election season. Once you being to think about the alternative to the decision that was made, you quickly see why Citizens United was the correct decision. To quote Chief Justice Roberts “we don’t put our First Amendment rights in the hands of FEC bureaucrats.” Damn right we don’t.

I can’t help but notice that just a month or so ago it was the left admonishing the right about the inviolability of the first amendment. That was when some objected to the ground zero mosque/Park 51. And yet this whole time the left has been railing about, essentially, the Courts decision to place maximum faith in the first amendment freedom of speech. There’s more than a whiff of hypocrisy there.

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