Posted by: Jeff | January 22, 2010

Bloggingheads Does Citizens United

Citizens United v. Federal Election Commission to be precise. Which is the Supreme Court ruling that just turned the world of campaign finance regulation on its head. The Bloggingheads video has Mark Schmitt conducting an emergency “what the hell do we make of this” interview with Yale law professor Heather Gerken. If you’ve got 20 minutes free and feel like getting your wonk on, I recommend it.

And I would perhaps recommend even more reading Schmitt and Gerken’s print pieces on the decision, which are linked to on the interview’s webpage. (Top right-hand corner.) Here’s Schmitt’s earlier take on the case, and his reaction to the decision. And here’s Gerken’s reaction, making some of the same points as in the interview.

The takeaway from the interview seems to be this:

1) This was indeed a textbook case of judicial activism. The issue raised by the video in question could have been decided on very narrow grounds, and the Court went out of its way to ask and then decide a far broader question about corporate speech in general. Furthermore, the decision in Citizens United overrules precedents the Court had upheld within the last decade. So it’s hard to escape the conclusion that this result was something the Court’s conservatives were gunning for as soon as they had the numbers to do so.

2) The most significant, and possibly dangerous, aspect of the decision is something which has received almost no attention in the media. Most of Congress’ constitutional leeway when it comes to regulating money in politics boils down to how you define the word “corruption.” The broader the definition, the broader the leeway. And Kennedy’s opinion in Citizens United significantly constricts the definition.

3) The decision isn’t so much a revolution in campaign finance law as it is the final knock-out punch in a whole series of blows the Court has delivered to regulation over the last decade or two. Much of the damage seems to have already been done, and this case was just dramatic enough to finally focus everyone’s attention on the extent of the erosion. In that sense, it’s not clear how much will actually change as a result of this decision.

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