Post-Citizens United v. FEC

Now that the dust has settled following the Citizens United v. FEC re-argument, the second round of reaction stories, editorials and analyses are flowing in (CCP recapped the first round here).

L. Gordon Crovitz of the Wall Street Journal, George Will of The Washington Post, and the editorial boards of The Denver Post and the Des Moines Register weigh in on the side of Citizens United and free speech. The Wall Street Journal‘s “Journal Editorial Report” television program on FOX News also featured discussion of the case — James Taranto, OpinionJournal.com editor, comments: “If Citizens United had made a porno movie, it would’ve been protected by the First Amendment…”

A Los Angeles Times‘ editorial seems to agree with the free speech crowd that “[u]nions and corporations, profit and nonprofit, should be allowed to engage in political communications without micromanagement by federal regulators,” but there seems to be some confusion on whether or not direct contributions could be at play here as they argue for a middle ground between overruling Austin and allowing the government to continue regulating independent political speech. Their only concern, though, seems to be preventing direct contributions from corporations, which overruling Austin would not allow (which they specifically mention). The Times also notes, much to CCP’s amusement, that the case “pits campaign reformers against free-speech advocates, two groups not accustomed to disagreeing.” Riiight.

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Citizens United: stare decisis, judicial activism and the factual record

A common thread in media accounts and analyses of the Citizens United v. FEC re-argument seems to dominate all other considerations: It’s now assumed that Citizens United will win but observers are unsure of how far-reaching the decision will be. The speculation specifically focuses on whether Chief Justice John Roberts and Justice Samuel Alito are prepared to overturn two of the Court’s precedents — Austin v. Michigan Chamber of Commerce and McConnell v. FEC.

The Center for Competitive Politics has mostly addressed the thematic arguments of this case on their merits (our most recent post, from CCP President Sean Parnell, discusses a central issue of the case and how the campaign finance debate probably shifted with talk of book banning), and it’s clear that a majority of the Court has rejected the arguments of the government and supports the principles of a robust First Amendment protecting political speech of all — including corporations and unions.

The question now seems to be whether Chief Justice Roberts and Justice Alito, the two conservatives who haven’t officially weighed in on Austin, have any reservations about eviscerating Austin and McConnell. All indications are that they do not, especially considering that if the Court was prepared to rule narrowly, it could have done so in June.

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Citizens United – It’s All About the Book Banning


It may one day be fair to say that the campaign finance “reform” movement was dealt a fatal blow that day in March 2009 when Deputy Solicitor General Malcolm Stewart responded to a question from Justice Alito.

Alito’s question was simple: Could the government ban political books that contained express advocacy if an incorporated entity was involved?

After much ducking, weaving, bobbing, and a few desperate clicks of his heels while shouting “there’s no place like home, there’s no place like home,” Stewart gave the answer that 100 years of campaign finance “reform” had forced him into: Yes. The government did have the power to ban books.

To say that this caused a stir would be an understatement. Banning books? Seriously?

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Prof. Hayward’s take on Citizens United v. FEC

“Professor,” formerly “The Skeptic,” Allison Hayward’s take on today’s argument (posted with permission from an Election Law Listserv post):

FYI: A transcript of the argument is here; audio is here.

Several of the early birds, myself included, presumed that a single rehearing featuring a first-time SG, Ted Olson, a new Justice on the bench, AND a challenge (pretty much) to 2 USC 441b would be a high attendance event. Which it was, but I still think it remarkable that the early Bar Line crowd was lighter than WRTL. Are people still out of town? Pikers.

Hint to the Court Clerk. It’s called Fandango. Look into it.

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Citizens United v. FEC update

Quick on the draw with reaction to oral arguments in Citizens United v. FEC [transcript] was Election Law Blog host Rick Hasen, who dished out instant analysis after his live-blog of the arguments. Prof. Hasen joined CCP Chairman Brad Smith for a discussion on the case on PRI’s “To the Point” radio show. Smith also has this NPR op-ed, a point-counterpoint with Maryland state Sen. Jamin Raskin. Raskin and Smith discussed the case at a Cato Institute policy debate.

The Wall Street Journal‘s coverage quoted Smith: “The big publicly held corporations are nervous about the fact that they can upset lots of shareholders,” Smith said [in explaining why small businesses are just as — or more — likely to be boosted than big businesses by removing the corporate independent expenditure ban]. “They tend to be more risk averse.” The Journal printed this companion editorial and Q & A. Brad is also quoted in Human Events‘ story.

According to The Hill, Sen. John McCain (R-Ariz.), said in a press conference after the arguments that the justices showed an “extreme naivete of the influence of corporate money and soft money.” Well, McCain doesn’t understand the First Amendment, so let’s be charitable and call it a wash…

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Brad Smith’s Cato podcast on Citizens United v. FEC

Following yesterday’s Cato Institute policy debate on Citizens United v. FEC, Brad Smith recorded this podcast for Cato: Free Speech v. FEC Redux.

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Citizens United v. FEC

Oral arguments in Citizens United v. FEC have concluded.

C-SPAN is airing the oral arguments here.

CCP’s press release reacting to oral arguments is here:

“Twenty-six states allow similar corporate expenditures with no demonstrated instances of corruption due to independent speech,” said Center for Competitive Politics Chairman Bradley A. Smith. “When the government decides to void the First Amendment guarantee that ‘Congress shall make no law…’ regulating political speech, it bears the burden of proof to show how such freedom is corrupting. On the contrary, speech by corporations and unions enriches public debate and must be allowed to flourish.”

According to early analysis from Lyle Denniston of SCOTUS Blog, Austin and McConnell are in jeopoardy if predicting the potential outcome from the tenor of oral arguments:

If supporters of federal curbs on political campaign spending by corporations were hoping that Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., would be hesitant to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for restraint, the strongest impression was that they had not convinced the two members of the Court thought to be still open to an exercise in modesty. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

Rick Hasen is live-blogging the arguments here.

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There you go again, Fred…

As you wait for the release of oral arguments in Citizens United v. FEC, take a look at this post from the newly-launched blog of the Public Affairs Council, the Public Affairs Perspective.

It takes on the hyperbole of campaign finance “reformers” like Fred Wertheimer — “It’s not that the sky’s the limit,” says Wertheimer, “the universe is the limit.” — head-on, and explains why their Chicken Little rantings about the possible impact of corporate spending on campaigns is overblown:

When big corporations were given the chance to fund issue advertising through 527 organizations, campaign finance watchdogs expected a huge influx of corporate dollars into these groups. But the vast majority of companies stayed away. In fact, according to the Campaign Finance Institute, only 2 percentof the contributions to federal 527s in 2007 came from businesses.

Companies aren’t in the business of stirring up trouble, which is what often happens when you tackle issues in a public way through political advertising. Very few CEOs are willing to risk the ire of employees, shareholders, customers and others who might disagree with a hard-hitting issue-oriented commercial. If they feel strongly about an issue and want to take to the airwaves, companies are far more likely to support advertising by a trade or business association.

No company has any extra money to spend on advertising these days anyway. And that situation isn’t going to change for awhile.

Hans A. von Spakovsky has more on the hyperbole of reformers, particularly E.J. Dionne of the Washington Post, here.

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CCP statement on Citizens United v. FEC

The Center for Competitive Politics released the following statement after the rehearing of Citizens United v. FEC today:

“Today, the Supreme Court heard two very different arguments: one, that the First Amendment protects the rights of everyone, including corporate shareholders and union members, to speak in campaigns,” said Center for Competitive Politics Chairman Bradley A. Smith. “The other, that the government can censor certain speakers it disfavors because of an unproven fear independent speech could cause corruption.”

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Brad Smith in New York Post on ethics and lobbying laws

In all the Citizens United v. FEC eve hoopla, I forgot to mention CCP Chairman Brad Smith’s op-ed in the New York Post today on proposed lobbying and ethics legislation in New York.

The piece is here.

Here’s an excerpt:

The Commission on Public Integrity’s bills to tighten regulations on lobbyists are a way of scapegoating government-relations professionals so that legislators can blame “special interests” for their own failures.

New York voters have lost faith in the Legislature — but it has nothing to do with lobbying. A recent Quinnipiac University poll found that 77 percent of New York voters view the Legislature as “dysfunctional”; 58 percent view it as “the worst” or “among the worst” in the nation.

Blair Horner of the New York Public Interest Research Group, which supports strict ethics regulations, offered up a bit of candor in a recent Post story: “In the long litany of Albany woes, the receptions aren’t the biggest problem.”

How true. With sinking revenue and a projected $2.1 billion budget gap, New York has bigger issues to address than micromanaging lobbyists.

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