When deference is activism

As the Senate Judiciary Committee continues hearings on Solicitor General Elena Kagan’s nomination to the Supreme Court, a number of the Court’s critics, most prominently Senator Arlen Specter (D-Pa.), are using the opportunity to castigate the “judicial activism” of Citizens United v. Federal Election Commission.

Ironically, their calls for deference to Congress, particularly in the campaign finance arena, would serve a result-oriented agenda more activist than anything thus far entertained by the Roberts Court. Kagan, who argued the government’s case in Citizens United, is a supremely ironic vehicle for this narrative ride through judicial philosophy.

Specter recently complained that the Supreme Court has disrespected the legislative branch by not deferring to its regulatory expertise. He contends that elected representatives should craft and debate laws regulating politics. He curtly criticized the stay issued by the Court in the case challenging Arizona’s taxpayer financing program for candidates (called McComish v. Bennett), and he’s irate about Citizens United allowing companies and grassroots groups to advocate for or against candidates.

Oddly, the legislative “fix” for Citizens United, the DISCLOSE Act that just passed the House of Representatives, contains no legislative findings at all (they were stripped out) and its present form was crafted largely in secret, without significant input from the minority party. Congress isn’t even trying to earn the respect Specter demands.

Read the rest at The Daily Caller.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, DISCLOSE, Disclose Act

Disclosures about Disclosure

In this article, Lloyd Hitoshi Mayer takes an interesting look at the Supreme Court decision in Citizens United v. FEC. He notes that while the Court lifted a longstanding ban on corporations and unions, who wish to engage in election related spending, the Court left questions pertaining to disclosure and disclaimer provisions related to independent expenditures unanswered. Mayer attempts to discover whether or not existing disclosure and disclaimer rules result in better informed voters and addresses the extent to which existing current requirements result in potential retaliation from political opponents. As the virtues of disclosure and disclaimers are too often unquestioned, he suggests that further research should be done in order to determine whether or not current policies are accomplishing their stated objectives. Given the recent reaffirmation of fundamental speech rights in Citizens United, Mayer advocates that disclosure and disclaimer rules should be designed to encourage greater political participation and assist voters in making better ballot-box initiatives.

Filed Under: Research, campaign finance, campaign finance reform, Center for Competitive Politics, Citizens United v. Federal Election Commission