Citizens United

  • January 20, 2012

    By Nicole Flatow

    Opponents of the landmark Supreme Court ruling in Citizens United v. FEC gathered at courthouses around the country today to protest the decision around its two-year anniversary, many petitioning for a constitutional amendment to overturn the ruling.

    The Constitutional Accountability Center released an Issue Brief bolstering the case for a constitutional amendment. To “those who think an amendment overturning Citizens United is a pipedream,” the Issue Brief and an accompanying blog post by Constitutional Accountability Center President Doug Kendall offer the story of Pollock v. Farmers' Loan & Trust Co. and its invalidation through the ratification of the Sixteenth Amendment.

    “Throughout our history, the American people have amended the Constitution in order to undo Court rulings that misinterpreted the Constitution," Kendall writes. "In addition to the Sixteenth Amendment, the Eleventh, Fourteenth, and Twenty-Sixth amendments were all sparked, at least in part, by divided Supreme Court rulings. In these Amendments, the American people agreed that the dissenting opinions, not the majority, better articulated the meaning of the Constitution.”

    But not everyone agrees that a constitutional amendment is the best solution to curb the infiltration of money into politics.

    Roosevelt Institute Senior Fellow Mark Schmitt writes for The New Republic that, unlike other movements to amend, an amendment to overturn Citizens United would “retract rights rather than expand them.” Schmitt suggests that this movement instead focus its energies on rooting out corruption in election spending more generally. He writes:

  • January 20, 2012
    Humor

    by John Schachter

    Stephen Colbert gave new meaning to “Justice delayed is justice denied” when he interviewed a surprisingly game former Supreme Court Justice John Paul Stevens. Colbert apparently didn’t realize (wink, wink) that Stevens had retired from the high court but reluctantly forges ahead with the interview nonetheless.

    The meat of the interview was a discussion of the court’s controversial Citizens United decision, coming up on its two-year anniversary. While Colbert insisted that corporations are exactly like people and deserving of all the same rights, Stevens parried quite effectively. “As with natural persons as well as corporate persons, some have different rights than others do,” Stevens explained. “The same rights don’t apply to everyone in every possible situation.”

    At 91 years, Stevens makes 90-years old Hollywood star Betty White seem old by comparison. His quick wit and sharp legal mind were on full display during the nearly 7-minute interview. The highlight? Colbert asked Stevens if there were any decisions he made that he later regretted. Said Stevens in response, “Other than this interview? I don’t think so.”

  • November 29, 2011
    Guest Post

    By Monica Youn, the Brennan Center Constitutional Fellow at NYU School of Law, and the editor of Money, Politics and the Constitution: Beyond Citizens United.


    That the conservative majority of the Roberts Court are champions of free speech is a trope that simply refuses to die. The New York Times summed up the Court’s most recent term by describing free speech as a “signature project” of Chief Justice Roberts, and numerous commentators have chimed in, contributing to the common misperception that the Roberts Court is “the most free speech Court in American history.”  Efforts to debunk this myth, by Erwin Chemerinsky, David Cole, and Nadine Strossen, among others, have seemingly failed to make much of a dent in the popular wisdom. 

    Ben Sachs’ forthcoming Columbia Law Review article, “Unions, Corporations, and Political Opt-Out Rights after Citizens United,” serves as a useful corrective, and, indeed, is one of the absolutely essential pieces of scholarship that I’ve seen in the wake of the decision. But before getting into the article in more depth, let’s look at some basic numbers for background.

    In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 29* cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in 10 of the cases, and that no free speech violation had been demonstrated in 19 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 34.48 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.

  • July 1, 2011
    BookTalk
    Money, Politics and the Constitution
    Beyond Citizens United
    By: 
    The Brennan Center for Justice and The Century Foundation

    By Erik Opsal, communications coordinator at The Brennan Center for Justice.


    For those following campaign finance law, this week’s Supreme Court decision to throw out one provision of Arizona’s public financing system came as no surprise. The Court’s one swing vote, Justice Anthony Kennedy, tipped his hand when, during oral argument, he bluntly asked if it was fair to say the law restricted speech.

    After last year’s sweeping decision in Citizens United, campaign finance reform advocates have come to expect the worst. In five years, the Roberts Court has heard five campaign finance cases. And in those five cases, voters lost out to powerful, wealthy interests every time.

    Although this case is a setback, there is one clear silver lining — public financing remains constitutionally sound. The Chief Justice said so himself. “We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Chief Justice Roberts wrote for the majority. “That is not our business.” As UC-Irvine Law Professor Rick Hasen characterized the Roberts decision:

  • January 13, 2011
    BookTalk
    Politics, Taxes, and the Pulpit
    Provocative First Amendment Conflicts:
    By: 
    Nina J. Crimm and Laurence H. Winer

    By Nina J. Crimm, Professor of Law, St. John's University School of Law, and Laurence H. Winer, Professor of Law, Sandra Day O'Connor College of Law at Arizona State University.
    The Supreme Court's highly controversial decision last year in Citizens United v. FEC held unconstitutional federal campaign finance restrictions on corporations' political campaign speech. This result creates a strikingly anomalous situation. Analogous federal tax law that absolutely precludes political campaign speech by many nonprofit entities becomes all the more singular and problematic, particularly for houses of worship.

    Many houses of worship and their religious leaders increasingly promote a highly vocal and influential role for religion in electoral politics. They address a plethora of emotionally charged moral and political issues for which religious beliefs and spiritual commitments are central for many people. Moreover, invoking spiritual mandates, many clergy go further to identify and comment on political candidates' positions as to these issues, either implicitly or explicitly endorsing or opposing candidates for political office.

    These religious voices in the political and public spheres are applauded by some people but are deeply troublesome to others. One easily can doubt the wisdom of houses of worship becoming directly involved in electoral politics and, under an ingrained notion of the primacy of separation of church and state in America, doubt even more the propriety of such involvement. On the other hand the Supreme Court often extends the greatest protection to political speech. So, surely as a constitutional matter, one might think that political campaign speech from any source, including spiritual leaders in their capacity as representatives of houses of worship, especially if religiously compelled or motivated, at least must be tolerated if not always welcomed.

    Yet, those who are troubled by such political participation by clergy point to tax advantages conferred on houses of worship, as section 501(c)(3) nonprofit organizations (along with other types of 501(c)(3) secular and religious entities), and their donors. Not only are houses of worship granted tax-exempt status under federal tax laws, but they alone are presumed to qualify automatically for the tax benefit, and their tax-itemizing donors are permitted to deduct contributions. These favorable tax treatments, generally considered the economic equivalent of government subsidies, are coercively and controversially conditioned by the tax code on spiritual leaders compromising their religious principles and entirely refraining from otherwise constitutionally protected political campaign speech. Taxpayers, the theory goes, should not be required to subsidize such partisan activity, especially if it is religiously based. But this absolute proscription attaches whether or not religious leaders' political campaign speech actually is financed by tax-exempt dollars, and regardless of whether the exhortations are confined to house of worship facilities during formal sermons, Bible, Torah, and Qur'an studies, and personal counseling sessions with adherents or are made in mass media publications or through such public domains as the Internet or Twitter.