Thursday, January 21, 2010

Citizens United case comes down
Tom Smith

SCOTUS has apparently looked at the First Amendment and decided it's OK and I say good for them.  I shall have to read the opinions or at least some summaries of them to discover what their reasoning is, but until that disappointing moment, I think one can permit oneself simply to savor the result.

I have long thought the idea that just because people decided to speak about politics through a juridical entity as opposed to say just a plain old club, that they could not spend much money to actually reach people doing so, to be utterly baffling and unpersuasive, and probably just a product of dusty progressive thinking of the sort that animated the Yale Law Journal in the 1930's.  Alas, in faculty lounges across the country today, jowly faces of men in tweed jackets and too tight button downs will be inflating like infurated toads, gasping Corporations!  Other people's money!  Incorporation is a privilege!  Wise ethicists counsel us not to enjoy this too much.  Much wailing and gnashing of teeth too is to be anticipated no doubt from younger persons at various lefty blogs, and I sympathize. It takes a lot of legal and political theory to explain why in the larger and profoundly understood scheme of things a bunch of people who have filed some papers cannot spend their money to talk politics the way a bunch of people who have not filed some papers can, and it would seem these ideas have not sold to our nine person speech planning panel.  

There is hardly anything more irritating than the political speech of persons, natural or artificial, with whom one disagrees.  In my own defense, however, I will note it does not occur to me that I should be able to use the power of the state to shut these irritants up, even if they are, oooh scary, hiss hiss, Big Corporations.  Or as was the case in this case, a very little one, laws to regulate speech being so notoriously hard to get right, even when they are wrong.  Business corporations will doubtless use their influence to lobby for candidates who are most likely to grant them monopoly privileges, regulate their competitors, and subsidize their inputs, as they do now, only perhaps even more so. Some will no doubt see the tractors of ADM scything down wheat fields, when what ought to shown are them scything down tax dollars, and think, oh, neat tractors, I better vote for that guy.  If you think there are no voters this stupid, you are not buying enough lottery tickets.  The marketplace of ideas can be a pretty sordid place and if you don't believe me, just try googling random words and see how long it takes you to find a sex practice you have never heard of before.  Still, better that than than having a bunch of political hacks decide what is and is not permitted into our brains.  

 I'm sure we all wish the Times good luck in recovering from its fainting spell.  Precedents overruled!  Doctrines dashed!  Horrors!

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Tom Smith


Read about half of the opinion of the Court. Big win. Way bigger than the N.R.A. position which was a sort of Emily's List argument to get around Austin. Austin is gone, and straight-up First Amendment law applies: facial unconstitutionality, chilling effect--the whole nine yards.

I have read that Obama wants a legislative fix. Read the opinion, Effendi, you're supposed to be a great Constitutional scholar as well as a great orator. It's over. Unless and until you can get Citizens United overruled, you're talking about standing in the schoolhouse door, like Orville Faubus of somebody, defying the law of the land.

Posted by: Lou Gots | Jan 21, 2010 2:03:33 PM

"It's over."

Or not. After the next couple of SCOTUS appointments, the Dems could re-pass the offending provisions and have another go. What makes you think the minority justices here would bow to stare decisis?

IMHO, the biggest problem with campaign finance laws has been that they empower the unions, Hollywood, and any big rich willing to skate close to the legal line (the Dem power base, in other words) while dis-empowering small business and individuals. (The biggest problem with John McCain is that he is not even bright enough to recognize this effect.)

This advantage will not be given up gracefully.

Posted by: JVDeLong | Jan 21, 2010 3:08:33 PM

We must pray for the justices' health, and for Justice Kennedy's reason.

Posted by: Jonathan | Jan 21, 2010 7:15:45 PM

Scalia didn't waste one sentence getting the knives out for Stephens. Is Stephens fully functioning?

Posted by: james wilson | Jan 21, 2010 11:42:06 PM

There is hardly anything more irritating than political speech of persons, natural or artificial, with whom one disagrees.

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