One Last Word on Citizens United


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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8 Responses

  1. Avatar Michael Drew says:

    What I found odd about Glenn’s piece is that he starts out saying he’s “deeply ambivalent” about the ruling, but then goes on with seeming relish to (in his mind I guess), utterly demolish both the legal case — including the arguments that money isn’t speech, and the question of the relevance of corporate personhood — and the practical case for the ruling, saying that he doesn’t think things could get worse (though he at least allows he may be failing to think of ways it might). What’s he ambivalent about?Report

    • He thinks there are weaknesses in the Court’s decision as a matter of law dealing with the decision to pursue the broad holding over the narrow holding. I think he’s right in this respect. He’s also sympathetic to the issue of corporations holding too much political power, as am I. But that’s different from saying that the decision is going to be apocalyptic (it’s not) and from saying that the free speech legal arguments underlying the decision are wrong (he thinks they’re right). Since most of the attacks on the decision have focused on the latter two points, he explains why those attacks are misguided.Report

      • Avatar Michael Drew in reply to Mark Thompson says:

        Ah, the activism. Good point, he does mention that. Doesn’t make a very big deal about it, though. If he was truly deeply ambivalent about that aspect of it you’d think he’d dwell on it a bit more. But yeah, it’s a pretty convincing piece on the law.Report

        • Avatar Michael Drew in reply to Michael Drew says:

          Well, actually on second look, he undermines that reservation as well:

          It’s absolutely true that the Citizens United majority cavalierly tossed aside decades of judicial opinions upholding the constitutionality of campaign finance restrictions. But what does that prove? Several of the liberals’ most cherished Supreme Court decisions did the same (Brown v. Bd. of Education rejected Plessy v. Ferguson; Lawrence v. Texas overruled Bowers v. Hardwick, etc.).


          • He’s not talking about the stare decisis issue when he’s referencing his reservations about the decision, but rather the general judicial principle that courts should render their decisions on the narrowest grounds possible. In essence, he’s saying that stare decisis is not a very good reason to oppose a decision when the original precedent was wrong to begin with, but that a court’s choice of broad grounds over narrow grounds is a definite problem.Report

  2. Avatar Jaybird says:

    It’s nice to know that there are still liberals who believe in stuff other than temporary partisan advantage.Report

  3. Avatar Kyle says:

    It just occurred to me now but part of the reason I dislike campaign restrictions is because they’re really, really bad at their job.

    Penalties exacted upon the candidates hold the candidate accountable for behavior they may or may not be responsible for and create incentives for sabotage from the opposition. The flip side of unfairly punitive measures are measures that leave few incentives to break them.

    When campaigns and donors get fined for violations it isn’t much better. If you’re sufficiently wealthy it might be cheaper for you to simply break the rules and pay the fine than to follow the rule in the first place. Most importantly, however, is the problem that you can’t take back an offense. If one breaks the law by promoting a candidate at a polling place, you can’t go back in time and remove the endorsement, you can only punish the violator after the fact. All in all it creates a system whereby the wealthy and powerful are either insufficiently deterred or are but at the cost of crippling the less wealthy and powerful. Moreover, if you break the rules there’s a very good chance that you’ll actually benefit from doing so assuming your competitor doesn’t and its sufficiently close to the election (or far enough away) not to have traction going into the election.Report