Monica Youn

  • 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 2, 2010
    During yesterday's ACS Supreme Court term review, video of which is available here, a range of cases were highlighted and debated. But the Court's decision (pdf) in Citizens United v. FEC, as The New York Times tagged it, was the term's centerpiece. The opinion in Citizens United, as noted by some Court watchers shows the Robert Court's as one affinity for business interests. At the 2010 ACS National Convention following a panel discussion on the ruling, the Brennan Center's Monica Youn talked with ACSblog about its potential impact.

    Youn said the decision essentially runs roughshod over shareholders by allowing vast amounts of corporate treasury to be funneled into electioneering without their knowledge or consent. Youn, however, highlighted several measures pending in Congress that could help shareholders have more knowledge about how their companies are expending profits. Youn's interview is below or it can be downloaded as a podcast here.

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  • June 7, 2010

    Editor's Note: The Supreme Court issued an order in McComish v. Brewer yesterday blocking public financing for Arizona candidates. In what Adam Liptak of The New York Times described as "a terse unsigned order without dissents" the justices put in place a trial court injunction barring public funds from being distributed to candidates. "The Supreme Court's stay will probably remain in effect through the state's primary elections in August and the general election in November," Liptak writes.

    Arizona officials urged the Supreme Court not to block its decade-old program of public campaign financing. In analysis for SCOTUSblog, Lyle Denniston writes that lawyers for the state argued that "publicly subsidized state political candidates in Arizona could be silenced if their access to official funds is cut off now ...." Recently the U.S. Court of Appeals for the Ninth Circuit upheld in McComish v. Brewer Arizona's public funding program, but opponents of the program have asked the high court to stay the release of the funds while it lodges an appeal. Denniston writes that the high court is "expected to make up its mind shortly on whether to step in at this point. Presumably, it will await a reply from the subsidy opponents before acting."

    In an Issue Brief released late last week by ACS, the Brennan Center's Monica Youn notes that public financing systems like Arizona's is one way to counter the enormous flow of corporate dollars into elections following the Supreme Court's recent ruling in Citizens United v. FEC. Youn writes, "Public funding programs also have the potential to promote meaningful electoral participation by a diverse range of citizens." Youn, counsel in the Center's Democracy Program, however, also notes that the public financing systems have come under increasing attacks from some of the same individuals and groups who lodged the Citizens United lawsuit, which led to the high court's decision that corporations have a First Amendment right to spend freely in elections. Youn's Issue Brief is available here.


  • June 7, 2010
    Like the millions of gallons of oil that have spewed into the Gulf of Mexico, a torrent of corporate dollars is likely to be unleashed into the nation's political system at a pace and size unseen before, because of the Supreme Court's recent opinion in Citizens United v. FEC, according to an Issue Brief released by ACS.

    In "Citizens United: The Aftermath," Monica Youn of the Brennan Center for Justice at New York University Law School studies public reaction to the ruling, how it is likely to shape forthcoming elections, and offers solutions on how to cap the rush of corporate dollars into the nation's electoral politics.

    The decision, Youn writes, "will affect every election for years to come. The 5-4 decision undermined 100 years of law that restrained the role of special interests in elections. By holding for the first time, that corporations have the same First Amendment rights to engage in political spending as people, the Supreme Court re-ordered the priorities in our democracy - placing special interest dollars at the center of our democracy, and displacing the rightful role of voters."

    Before Citizens United, corporations were constrained in their ability to engage in electioneering. Corporations, Youn notes, had to create PAC funds, "amassed through voluntary contributions from individual employees and shareholders who wished to support the corporations' political agenda. Such funds were subject to federal contribution limits and other regulations. Now however, the Citizens United decision will allow corporations that wish to directly influence the outcome of federal elections to draw from their general treasury funds, rather than PAC funds, to support or oppose a particular candidate."

  • July 10, 2009


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    The Brennan Center for Justice recently released an extensive report on Judge Sonia Sotomayor's jurisprudence in constitutional cases generally. The Brennan Center's Monica Youn, discussing the report she authored in the clip above, writes, "Based on this exhaustive review, the conclusion is unmistakable: in constitutional cases, Judge Sotomayor is solidly in the mainstream of the Second Circuit."