The Tangled Web We’ve Woven: What Weight to Give Precedent in Citizens United?

The Supreme Court has by now voted on Citizens United v. FEC and the justices should be writing their opinions.  After a special oral argument last week, most observers were predicting a win for Citizens United in their battle to air “Hillary: The Movie,” (or more realistically, for Citizens United’s future political speech efforts.)  The question will be how large the win is – will the Court overrule the a pair of recent precedents, Austin v. Michigan Chamber of Commerce and McConnell v. FEC, which themselves twisted and distorted the Court’s prior decision in Buckley v. Valeo, while claiming to leave Buckley intact (a sort of “faux judicial restraint)?  Or will it decide the case on more narrow grounds?

In this article from the October 2008 issue of Engage, journal of the Federalist Society’s Practice Groups, CCP Academic Advisor and George Mason University Law Professor Allison Hayward  argues that a “principled court” can and should “repair the mistakes of the past.” 

She argues, in part:

Unfortunately, the present blend of court-crafted doctrine and Congress-crafted statute is complicated and irrational. Thus, attempting to scrutinize future cases within existing precedent will not help decrease the burden this conglomeration imposes on political activity. That complexity alone may raise a deeper legal question. Can complexity itself pose an unconstitutional burden on speech, association, or other protected activity?

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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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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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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 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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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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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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Hysteria and hyperbole no substitute for facts in Citizens United

Continuing campaign finance “reformers” pattern of dramatically misunderstanding what is at stake in Citizens United, E.J. Dionne of the Washington Post yesterday unleashed a hysterical and factually-challenged column in advance of tomorrow’s crucial re-argument in front of the Supreme Court.

Early on, Dionne claims that “The court is considering eviscerating laws that have been on the books since 1907 and 1947 — in two separate cases — banning direct contributions and spending by corporations in federal election campaigns.”

The problem, of course, is that the Supreme Court is not “…considering eviscerating laws that… [ban] direct contributions… by corporations…” Only independent political speech by corporations (and unions) at stake in Citizens United. Claiming otherwise is to show that one has not bothered to let facts get in the way of a good hysterical rant.

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CCP at Bloggerheads debating Citizens United

CCP Communications Director Jeff Patch will be debating the Citizens United case on Bloggerheads, where he will be exchanging blog posts with Lionel Artum-Ginsberg, an attorney. The debate will go on for the next 24 hours, so please check back at Bloggerheads from time to time for new posts.


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