Tag: Supreme Court

Don’t Fear the Foreigner

You might have heard that the Citizens United decision will allow foreign corporations to become involved in American campaigns. You might have heard that from the President, in fact, whose speech decrying the decision said foreign corporations “may now get into the act” of pursuing their “special interests” in American politics.

Not true. Justice Kennedy explicitly says the Court did not decide whether Congress has the power to prevent “foreign individuals or associations from influencing our Nation’s political process.” Nothing in Citizens United prevents Congress from prohibiting such political spending by foreign corporations. The Supreme Court might uphold such a law or it might strike it down. The upholding or the striking down of such a law was left for another day. (Other parts of existing laws would also probably preclude foreign nationals or corporations from getting involved in American elections, as Brad Smith argues).

I don’t think I like the new populist Obama as much as I did the old rationalist Obama. The old Obama would have read a Supreme Court opinion before talking publicly about it.

Democracy Will Survive Citizens United

At Politico Arena, today’s focus is on the Court and campaign finance.

My comment:

The ink is barely dry on today’s Citizens United opinion, and the hysteria has already begun.  Set aside the misunderstandings we’re seeing in some of the comments here at the Arena – corporations still cannot, for example, contribute directly to campaigns – even some of those who understand the law and this decision would have us believe that the world as we know it is coming to an end.  Thus, the inimitable Rick Hasen, whose knowledge of these issues is second to none, tells us that “today’s Supreme Court opinion marks a very bad day for American democracy.”  And attorneys at NYU’s Brennan Center, which made its reputation promoting campaign finance “reform,” head up their post with this: “After the Flood: How to Save Democracy Post Citizens United.”  One imagines the Dark Ages just beyond the gloaming.
 
Over on the Hill, meanwhile, Senator Russ Feingold, who’s having a bad day in what must for him be a bad week, promises darkly, “In the coming weeks, I will work with my colleagues to pass legislation restoring as many of the critical restraints on corporate control of our elections as possible.”
 
Relax.  Half of our states, states like Virginia, have minimal campaign finance laws, and there’s no more corruption in those states than in states that strictly regulate.  And that’s because the real reason we have this campaign finance law is not, and never has been, to prevent corruption.  The dirty little secret – the real impetus for this law – in incumbency protection.  How else to explain the so-called Millionaire’s Amendment, which the Court struck down in 2008.  That little gem in the McCain-Feingold “reform” package exempted candidates (read: incumbents) from the law’s strictures if they were running against a self-financed “millionaire,” who could not be prohibited from spending his own money campaigning.  Thus, the nominal rationale for the incomprehensible edifice we call “campaign finance law” – to prohibit corruption – suddenly disappeared if you were running against a millionaire.  Well, the Court, fortunately, saw right through that.  And a majority on the Court saw the light in today’s decision, too.  The First Amendment is not a “loophole.”  It’s the very foundation of our democracy, and we are the stronger today for this decision.

Supreme Court Ruling on Hillary Movie Heralds Freer Speech for All of Us

Today the Supreme Court struck a major blow for free speech by correctly holding that government cannot try to “level the political playing field” by banning corporations from making independent campaign expenditures on films, books, or even campaign signs.

As Justice Kennedy said in announcing the opinion, “if the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.”

While the Court has long upheld campaign finance regulations as a way to prevent corruption in elections, it has also repeated that equalizing speech is never a valid government interest.

After all, to make campaign spending equal, the government would have to prevent some people or groups from spending less than they wished. That is directly contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions about the freedom of speech.

No case demonstrates this idea better than Citizens United, where a nonprofit corporation made no donations to candidates but rather spent money to spread its ideas about Hillary Clinton independent of the campaigns of primary opponent Barack Obama, potential general election opponent John McCain, or any other candidates. Where is the “corruption” if the campaign(s) being supported have no knowledge, let alone control over what independent actors do? – be they one person, two people, or a large group?

Today’s ruling may well lead to more corporate and union election spending, but none of this money will go directly to candidates – so there is no possible corruption or even “appearance of corruption.” It will go instead to spreading information about candidates and issues. Such increases in spending should be welcome because studies have shown that more spending — more political communication — leads to better-informed voters.

In short, the Citizens United decision has strengthened both the First Amendment and American democracy.

For more background on the case, here’s a primer:

Is Justice Kennedy Libertarian?

Early last year, Cato hosted a book forum for Helen Knowles’s The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.  This really is a remarkable book, with an ambitious goal: trying to make coherent sense of the oft-frustrating “swing justice.”  And now I have a lengthy review of it that just came out in the latest issue of the Harvard Journal of Law & Public Politics (where Bob Levy also has an essay, on the aftermath of District of Columbia v. Heller).

Knowles makes the provocative argument that Justice Kennedy’s jurisprudence is “modestly libertarian.”  I think that this argument, in the limited ways Knowles makes it – with respect to free speech, equal protection, and individual dignity – is probably sound.  Still, that deduction is a small discovery considering the broad swath of Supreme Court jurisprudence.  Moreover, it says little about whether Kennedy is faithful to the Constitution, which is a stronger measure of libertarianism (as Randy Barnett described at Cato’s 2008 Constitution Day Conference in his B. Kenneth Simon Lecture in Constitutional Thought, reprinted in the latest Cato Supreme Court Review).

Here’s how I conclude:

Good on speech and race, bad on government power, and ugly on abortion and the death penalty, Justice Kennedy is a sui generis enigma at the heart of the modern Supreme Court.  However new Justice Sonia Sotomayor affects the Court’s dynamics, it is unlikely that Justice Kennedy will shift from his role as the deciding vote in most controversial cases.  Helen Knowles has thus done us a great service in deconstructing Justice Kennedy’s faint-hearted libertarianism and helping us better understand the “sweet mystery” of his jurisprudence.

For details on how I reached this conclusion, read the full review (which you can also download from SSRN).  I should add that Knowles’s book is more useful to us Court-watchers than Frank Colucci’s Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty – whose shortcomings I won’t detail but instead refer you to Eric Posner’s thoughtful critique.

Keeping Pandora’s Box Sealed

In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?

If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“  As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”

Going beyond the title, there are several errors in the piece,  which I will briefly recap:

First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal – and thereby a reinvigoration of Privileges or Immunities – would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.

Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause – the exact vehicle the Kens would use to “incorporate” the Second Amendment.

To set the record straight, Josh and I are working on an op-ed – not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.

Are You a Criminal? Maybe You Are and Don’t Know It

Yesterday, Michael Dreeben, the attorney representing the U.S. government, tried to defend the controversial “honest services” statute from a constitutional challenge in front of the Supreme Court.  When Dreeben informed the Court that the feds have essentially criminalized any ethical lapse in the workplace, Justice Breyer exclaimed,

[T]here are 150 million workers in the United States.  I think possibly 140 [million] of them flunk your test.

There it is.  Some of us have been trying to draw more attention to the dangerous trend of overcriminalization.  Judge Alex Kozinski co-authored an article in my book entitled “You’re (Probably) a Federal Criminal.”  And Cato adjunct scholar, Harvey Silverglate, calls his new book, Three Felonies a Day to stress the fact that the average professional unknowingly violates the federal criminal law several times each day (at least in the opinion of federal prosecutors).  Not many people want to discuss that pernicious reality. To the extent defenders of big government address the problem at all, they’ve tried to write it all off as the rhetoric of a few libertarian lawyers.  Given yesterday’s back-and-forth at the High Court, it is going to be much much harder to make that sort of claim.

For more on this subject, go here, here,  and here.