Tuesday, February 09, 2016

Overturning Citizens United

Gerard N. Magliocca

Let's suppose you think that Citizens United was a terrible decision that should be overruled. (I don't, but stay with me for a minute.) You might think that the best way to accomplish that goal is by voting for Bernie Sanders, who recently said:
"No nominee of mine, if I'm elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United."
Sounds good, right?  Unfortunately, like a lot of what Senator Sanders says, this isn't well thought out. Actually, he is the only candidate who, if elected President, could not get Citizens United overruled.  Why?  Because any Justice he nominates who is confirmed would have to recuse from reconsidering that precedent if he or she were "loud and clear" that they would overrule that case prior to taking the bench.

Now it's fair to say that this is nothing more than a legal fiction.  Presidents nominate people that they think will overrule one precedent or another all the time.  But that is different from saying that saying that only an explicit guarantee will do.  Excuse me if I'm not feeling the Bern.  


I'm not aware of this rule where strong opposition to a precedent before you are a judge requires you to recuse yourself. And, "loud and clear" to whom? To him personally? How? By strong reasoned criticism in law articles while noting that he or she would be open to overturning precedents based (see previous article) on bad reasoning or whatever?

For instance, did Chief Justice Chase before he became justice strongly oppose Dred Scott v. Sandford? Was it reasonable to say it was pretty "loud and clear" that he would vote the other way if given the chance? Does this mean he would have to recuse himself? Maybe the rules were different. Did Prof. Scalia never "loud and clear" oppose current precedent & say he would vote the other way if -- ha ha, never happen! -- become a justice? Did he recuse?

ETA: Of course, as you note, what happens is more coy. So, Sen. Sanders is being a bit too honest. If elected, he will (like Kagan suddenly decided being fully open about one's views during confirmation wasn't as ideal as she once said) tone it down a bit. Hedge.

OTOH, many people like him (or Trump, basically the same person apparently, according to Bill O'Reilly) for not bs-ing as much. Anyway, him being elected won't change the game THAT much and such an explicit statement will be used by Republicans to oppose the nomination of such a person. So, prudentially he would tone it down. It's campaign puffery.

Find something else to criticize him about.

If Republicans lose the Senate, Democrats aren't likely to concern themselves with something as trivial as a point of judicial ethics. They're going to demand absolute fealty on all the litums tests.

OTOH, if Republicans hold the Senate, but Bernie gets elected, he IS probably going to have to allow his nominees to fudge a little to get through the hearings. Everybody will know what's up, but the few Republicans who cross over to provide needed votes will need a bit of cover, to pretend they didn't know they were voting to gut the 1st amendment.

"gut the 1st amendment"

Yes, we all can remember the 1984-ish massive censorship common before the Citizens United decision.

Has the Right become incapable of talking without over the top hyperbole? Maybe Citizens was rightly decided-I think there are good arguments in its favor actually, but free speech was not 'gutted' before it nor would it be afterward.

Yes, I think we can all remember the way campaign 'reformers' were ramping up the censorship. Why, in the CU case, they actually argued before the Supreme court in favor of book banning!

Of course, some of us recall it fondly, some of us with horror.

Had it progressed as far as "gutting"? No. And the CU decision prevented it from progressing that far, much to the 'reformers' disgust.

I think the left's escalating war on freedom of political speech was put on hold by the CU decision, and given a chance to reverse it, they'd take it up where they left off. And probably push it as far as they could.

Yes, as far as gutting the 1st amendment.

Stewart certainly did a bad job arguing, but even if he took his argument it was that the government could require a corporation to pay for a electioneering book *via a PAC rather than general treasury funds*. The horror!

Yes, the horror of the government regulating political speech. The federalist papers would have been a felony under the regime they intended.

You'd write a book, the government would read it, decide it was "electioneering", (As though electioneering wasn't a core 1st amendment right!) and then nail you for having published it in the ordinary way.

Like I said, some of us recall it fondly, some with horror, but it was censorship, and intended as such.

"in favor of book banning"

Obscene books? Books where government agents release classified information? Books deemed too mature for elementary/secondary school libraries? Books releasing privileged materials of various types?

No. That's "the right."

As to doing a "bad job arguing," eh. It was a lost cause. Paul Clement could have argued for the other side to pay off a bet and still lose. And, as you say, it was not really "BOOK BANNING!" but the means used to pay for it and it was something easily handwaved away if pressed. As it was.

And, there must be some limit of use of corporate funds in place NOW that if you phrase the hypo carefully enough would disallow use of it for "a book."

"The federalist papers would have been a felony under the regime they intended."

How? Wasn't aware Jay, Hamilton and Madison was paid off by corporate funds. It wasn't for a regular election, they were newspaper op-eds and so on. Even Citizens United upheld disclosure laws. If your concern is the Federalist Papers will be cited for being anonymous .... though again, corporate funds being used in a certain way is the concern, not the ability to publish in the first place.


All you're doing is confirming the charge. You'd force people to jump through arbitrary and ever changing hoops to exercise core 1st amendment rights, with criminal liablity if they missed one.

This is as central as a civil right gets, and you want it treated as though it were some kind of privilege. I call that gutting a right.

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You made a confused comment about the Federalist Papers. I noted this. No response.

I noted how the 1A, as understood by all sides, is not absolute. It isn't some "left" thing. That there are accepted regulations. No response.

"Arbitrary" is a say-so word. Corporations, "some kind of privilege," state creations providing special immunities, have been regulated from the start. This includes chartering them for limited purposes, them not having unlimited power to speak etc. Disclosure laws, not the same for you and me, is but an example.

Laws over time, including those that touch upon constitutional rights and powers, 'change' as things around them change. This includes regulating the public airwaves and other things. Certain "hoops" were always allowed. Never absolute.

I don't want the 1A overall treated as "some kind of privilege" and oppose various limits people on various sides want to put on it. I personally don't oppose Citizens United basically though campaign finance regulations of some sort now as ever are allowable in certain ways. Like it was over a century ago.

Brett is coming off like those abortion rights supporters who say a 24 hour waiting period 'guts' the right to abortion or civil rights activists who say an ID requirement for voting 'guts' the right to vote. Hyperbole abounds.

Given that those restrictions and requirements are aimed at those in greatest need of those freedoms and effective, I don't see any hyperbole at all.

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I was referring to abortion and voting rights restrictions that don't appear to gore Mista Whiskas's ox. As you point out, the 1st amendment concerns here affect the powerful.

Sorry for the confusion.

I think the things referenced by him bad, but don't think a 24 hour waiting period, e.g., "guts" abortion rights. The suggests abortion rights will be but a shell without that. But, depending on the thing, yes, perhaps not evenly applied hyperbole.

Fair enough.

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