The Citizens United and Wisconsin Right to Life rulings made it possible for advocacy groups today to put the heat of public opinion on senators and presidential candidates to confirm or block Supreme Court nominees, and to push this as a campaign issue. Ironically, many of the same groups exercising their speech rights in this manner also have urged a reversal of Citizens United, whether by constitutional amendment or Supreme Court appointments. Scalia surely would have scolded such intellectual “jiggery pokery.”
Even while Citizens United invalidated outright prohibitions on political speech, the debate over issues of public concern is still by no means an unregulated bacchanal. To the contrary, what in common parlance is known simply as “free speech” and “democracy” is often regulated as “grassroots lobbying” under state laws if the speech concerns state-level matters. Under both state and federal laws, groups speaking about issues and candidates also may still be required to file campaign finance reports. What’s more, the IRS regulates advocacy on matters like judicial nominations as both a political activity and a non-political activity, and also as lobbying that may or may not be restricted, depending on how a group is structured. Admittedly, Scalia voted to uphold some of these substantial burdens on political speech. To which a Scalian retort might be that speakers should not be forced to wade through this “legalistic argle-bargle” simply to engage in the public debate over the justice’s successor.