Saying the Supreme Court's decision "turns the idea of
government of, by and for the people on its head," Senate Judiciary Committee
Chairman Patrick Leahy (D-Vt.) held a hearing Wednesday (March 10) on the
Supreme Court's decision last September in the Citizen's United case to allow
direct funding of TV and radio campaign ads by corporations and unions.
While legislative fixes are being considered, the hearing
was not on any specific bill, but an effort by Leahy and company to get a
handle on "how the court came to its conclusion and the impact this case
will have on our democracy."
With a tellingly-placed question mark, the title of the
hearing gave a clear indication of where the Democratic majority stood on that
decision: "We the People? Corporate Spending in American Elections after
Witness Jeffrey Rosen, a law professor at Georgetown University,
left no doubt where he stood on the issue. He called it an activist decision
that disregards history, tradition and precedent. He said that the decision is
the latest in a string of pro-business outcomes from the court. He said that
while the court only takes about 2% of cases it has taken 26% of appeals backed
by the U.S. Chamber of Commerce and decided 75% in the chamber's favor.
He also said that Chief Justice John Roberts had professed
his desire for narrow, preferably unanimous opinions, but that the 5-4 decision
in Citizen's United was anything but. "The broad rhetoric in Citizens
United about the rights of corporations, combined with the apparent willingness
of the 5-4 conservative majority on the Roberts Court to invalidate federal
regulations that have broad bipartisan support, could lead to future
confrontations between the Supreme Court and Congress on matters of economic fairness
that citizens care intensely about."
By contrast, Bradley Smith, law professor and chairman of
the Center for Competitive Politics, told the senators he thought the Supreme
Court got it absolutely right in the Citizen's United decision.
Smith pointed to the government's oral argument in the case.
"it was the position of the U.S. government that it could prevent a
non-profit group such as Citizens United-and thus presumptively a for-profit
corporation such as Tri-Star, or Cinemark Theatres-from producing or
distributing a political documentary, such as Fahrenheit 9/11 or All the
President's Men. That, he said, was obviously wrong, as was the government
lawyer's suggestion that the publishing of a book could be banned under the
same campaign finance rules.
Senator Jeff Sessions (R-Ala.) agreed that a broad decision
had been in order after the government made its reading of the law clear.
Sessions said Congress already knew the prohibition on direct corporate funding
was pushing the edge of the First Amendment, and that the case implicated the
big issue the court addressed--restrictions on political speech.
Smith called the case an easy one to decide, saying
there was no justification for the hysteria over the decision or the rush
by Congress to "fix" the court's holding.
"Fortunately," he said, "a majority of
Americans still support the Court's fundamental holding-that the First
Amendment doesn't just protect the individual pamphleteer; it protects all
individuals and associations from government censorship and restriction of
Sen. Al Franken (D-Minn.) took issue with the study
submitted by Smith showing that a majority (51%) of respondents approved of the
Franken said he had gotten 220 e-mails, over 200 of which
opposed it. Reprising the sort of tough grilling he gave to the principals in
the Comcast/NBCU joint venture, Franken hammered Smith on several points,
drawing testy responses from Smith and the observation that he thought Franken
He said the case took on a different tenor after the
suggestion by the government lawyers that books could be banned.
Doug Kendall, president of the Constitutional Accountability
Center, said that wasn't
what the government was saying.
Kendall, whose progressive
group had supported Roberts, said Roberts had not stuck with his pledges to
avoid judicial activism or give due deference to congressional decisions.
"This ruling flies in the face of so many things that he said he would be.
It does throw many of those hopes to the wind," he said.
Citizen's United is a veteran Bush-backing, Clinton-bashing
group that petitioned the court after a three-judge district-court panel in
January 2008 refused to grant an injunction against campaign finance-law requirements
that it must put disclaimers on the ads and disclose their funding. The group
is challenging campaign finance-reform laws that put disclosure and disclaimer
requirements on so-called electioneering communications.
The High Court actually upheld those disclosure
requirements, but took the opportunity to strike down the ban on union and
corporate contributions as an unconstitutional restriction on political speech.
The president said in his State of the Union Speech that he
would make undoing the decision a priority, and Democratic Rep. Chris Van
and Sen. Chuck Schumer (D-N.Y.) said they would do "everything possible to
make sure this decision does not stand."