Supremes uphold common sense

Posted by T. Greg Doucette on Jan 22, 2010 in Unsolicited Commentary

New 1L trend I never experienced before: having your Facebook mini-feed loaded with status updates from your peers griping about a Supreme Court decision :beatup:

I’m assuming by now all of you have heard about the Supreme Court’s decision yesterday in Citizens United v. Federal Elections Commission, the free speech case involving a group wanting to run an anti-Hillary Clinton documentary on cable TV during the ’08 presidential primary.  If you’ve been on vacation or living under a rock or something similar, you can download a copy of the slip opinion at the Supreme Court’s website.

Despite the risk of being accused of lacking a social life, I’ll confess two things up front: (i) I’ve been reading Supreme Court opinions just for the fun of it since high school, and (ii) I spent most of yesterday and today reading through all 180ish pages of the Citizens United case instead of studying (although it’s really only like 80 pages of text since the Court uses pages margins that would get a law student a failing grade :crack: ).

I agreed with the Court’s decision, and thought the dissent was particularly unpersuasive — both points that are probably not surprising given my political leanings. The concurrence from Justice Scalia provided an appreciated historical context, and the concurrence from Justice Thomas provided an interesting perspective on disclosure (even though I’m not convinced of his viewpoint).

But what really blew my mind were the Facebook status updates.

“omg this is the end of democracy in America! MONEY IS NOT SPEECH!” was one of them, with the caps added for dramatic flair. “[N]ow corporations can give unlimited $$ to candidates while the common man is getting screwed” was another. And so on it went almost universally among my 1L colleagues at NCCU Law, UNCCH Law and Duke Law.

So in typical TDot fashion I updated my own status to declare my love for the Supremes and this decision in particular ;)

A flame war ensued. At one point my mother — who’s politically about as polar opposite to me as one can get — decided to join the debate, so I figured I needed to take the discussion here to the blog where she’s less likely to read it and blow up everyone’s mini-feed with her responses :beatup:

Some gratuitous thoughts on this particular case:

  1. McCain-Feingold was shamelessly unconstitutional from Day 1. Anyone who wasn’t alarmed by its prohibition against running ads 30/60 days before an election should surrender their voter registration card immediately. Every single incumbent who voted for it knew they were doing so to insulate themselves from outside criticism, not to “reform the system.” It plainly violated the First Amendment, which the Court was kind enough to lay bare for those who still didn’t know.
  2. Money is speech. This really shouldn’t even be debatable because it reeks of common sense, but freedom of expression doesn’t count for much if it’s limited to you standing on a soapbox at the street corner — a point recognized by well over a majority of the country. For an analysis provided by the Supreme Court on the issue, go read the various opinions in Buckley v. Valeo, 424 U.S. 1 (1976).
  3. “Corporate” restrictions were arbitrary and predictably unconstitutional. Much consternation and gnashing of teeth has taken place by the left-wing denizens of the blogosphere because the Court upended limitations on corporations directly running their own “express advocacy” ads for/against a given candidate.  Yet media organizations like newspapers (themselves almost all incorporated) have always been excluded from these restrictions solely because of the fact the product they sell is labeled “the press” (e.g. separately protected by the First Amendment). This arbitrary distinction between one corporation type from another made little sense on its own, and even less so when it applied to incorporated associations like labor unions, the Sierra Club, etc — why should I have more rights as an individual than I would if I can successfully convince other individuals to agree with me?
  4. The decision’s practical impact will be negligible. Contributing money or buying ads for a political campaign is fundamentally an economic decision — the contributor/purchaser decides the value of potentially influencing the election is worth more than the cash contributed/paid. In other words, a corporation is going to give the exact same dollar amount, regardless of the mechanics, if it decides that’s the money it wants to invest in a race.  We saw this after McCain-Feingold was adopted with the sudden proliferation of 527s and their issue ads.  The Supreme Court’s decision isn’t going to suddenly open a flood of corporate spending, it’s just going to make the spending more direct instead of forcing it to be routed through fake groups set up solely for campaigning purposes. This fundamental reality was highlighted in this piece at Politico.
  5. Want less $$ in elections? Abolish contribution limits… Following the campaign-contribution-as-economic-choice point, the fact contribution limits are in place at all artificially increases the amount of money in campaigns. Think of it like a garden hose: as you’re watering your garden, the water (campaign $$) flows out in a straight path. But put your thumb (contribution limits) over the nozzle, and the water splashes in all directions. That’s functionally what happens with the current system — Joe Citizen decides he’s willing to part with $12,000 for a given race, but instead of giving all $12K to his candidate, he gives only $4K to the candidate, then $4K to a 527 supporting his candidate, and then $4K to his candidate’s party.  So now he’s got 3 agents in the political process instead of 1, and all 3 of whom will now be bidding for the same media space… artificially inflating demand, leading to higher prices, leading to the need to raise more money, and on in a spiral it goes.
  6. …or shrink the government. I know this will never happen, but the main reason so much money gets spent on political races is because the government has its hands in every cookie jar in the country. When new regulations would cost a given industry tens of millions of dollars, of course the players in that industry will spend a couple million apiece to avoid the regulations — it’s a huge economic incentive for them and their employees. Stop trying to regulate everything into nonexistence and suddenly you take away the incentive for amassing über-huge campaign war chests.

That’s my abridged rant on Citizens United v. FEC. My apologies to those of you who come to law:/dev/null for the normal chronicling of my 1L life instead of a political diatribe — hopefully you’ll still come back tomorrow :*

Have a good night folks!! :D

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