Federal Judiciary

Academic round-up

By Amanda Frost

Citizens United v. FEC, one of the most high-profile decisions of the 2009 Term, struck down limits on corporate campaign spending (and, by implications, limits on union spending as well). The decision has already been the subject of numerous academic articles attempting to gauge its likely effect on campaign finance regulation and the potential for political corruption.

Two articles forthcoming in the Harvard Law Review propose methods for countering the political corruption that some fear will result from corporate contributions. Samuel Issacharoff suggests that reforms designed to increase campaign contributions by non-corporate donors would help to diminish corporate influence. He also favors prohibiting such spending by entities uniquely capable of distorting government policy, such as government contractors. In a separate article, co-authors Lucian Bebchuk and Robert Jackson contend that decisions regarding political spending differ from ordinary business decisions, and thus they propose new rules to align corporate political speech with shareholder interests.

In a forthcoming article in the Michigan Law Review, Rick Hasen predicts that the Court will find it difficult to apply the decision?s sweeping statements regarding the First Amendment and campaign contributions consistently in future cases. For example, the majority’s rationale suggests that there can be no limits on campaign contributions by foreign nationals?a position that he doubts the Court will be able to sustain in the face of hostile political and public reaction. Hasen thus concludes that Citizens United will exacerbate existing doctrinal incoherence in this area of the law as the Court is forced to make exceptions to its broad pronouncements.

Finally, Deborah Hellman?s article in the Minnesota Law Review challenges the assumption that contributing money to campaigns constitutes speech protected by the First Amendment. Hellman concedes that money facilitates speech, but she points out that money facilitates the exercise of many constitutional rights and yet spending in furtherance of other rights is not always constitutionally protected. As Hellman acknowledges, her article questions an assumption that the Court now takes as a given, and that it is unlikely to abandon in the near future.

Full post as published by SCOTUSBLOG on September 07, 2010 (boomark / email).