[EL] Citizens United Pushback

Fri Feb 24 18:54:26 PST 2012

Again, shouldn't the question be the other way around: if critics of Citizens' United think the voters have it right - despite the awesome power of UNLIMITED, UNDISCLOSED, CORPORATE EXPENDITURES INCLUDING FOREIGN CORPORATIONS - why are limits on speech necessary? If the voters don't have it right, why are limits on speech permitted?

I don't believe that the electorate always gets it right, certainly not on every individual issue. I believe that allowing the electorate to try is much better than allowing government to try to set the terms of debate and decide who should speak more, and who should speak less. I think the Constitution provides important protection of individuals rights and a functioning democracy against an erroneous, intolerant, ignorant, or short-sighted majority. Given the types of people that often gain power, I think we are fortunate to have this protection.

Churchill made two statements that are worth keeping in mind:
"The best argument against democracy is a five minute conversation with the average voter."
and
"Democracy is the worst form of government except all those other forms that have been tried from time to time."

Supporters of speech restrictions in the guise of "campaign finance reform," in my view, stop after the first quote, and decide that we must regulate what they hear, to guide them to correct decisions. But those of us on the other side recognize the validity of that first quote and also the second.

Thus, we support representative democracy, tempered by a Constitution that provides strong protection for individual rights and strict limits on government power, especially in the realm of regulating the political speech which determines who shall hold power, as the best form of government.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________________
From: Jeff Hauser [jeffhauser at gmail.com]
Sent: Friday, February 24, 2012 9:31 PM
To: Smith, Brad; law-election at uci.edu
Subject: Re: [EL] Citizens United Pushback

Brad, doesn't the pervasive unpopularity of the decision cause tension
with your point of view about the marketplace of ideas?

On 2/24/12, Smith, Brad <BSmith at law.capital.edu> wrote:
> Rick asks, "
> Why the pushback about whether superpacs created by Citizens United? To
> defend the Supreme Court against charges it created monster"
>
> I never would have thought that calling out repeated factual errors by major
> media outlets would require some justification other than the obvious fact
> that repeated factual errors were being made by major media outlets. To the
> extent that erroneous descriptions of Citizens United, erroneous reports of
> its consequences, and general bias have sometimes seemed the result of a
> purposeful attempt by opponents of Citizens United to give the impression
> that a "monster" was created, including xenophobic race-baiting about
> "foreigners," however, I suppose that might be the justification.
>
> Citizens United was, is and remains a success story. There is more
> information in circulation; we've seen increased voter interest, more
> competitive races and more races that are competitive. None of the dire
> predictions made by opponents of the decision have come true, unless one
> considers increased spending itself a "dire" result, regardless of the
> consequences of that spending. Of course, everyone knew that increased
> spending would result, and in and of itself that is hardly a bad thing.
>
> But if we must be so tendentious, however, I think the question is best
> thought of in the opposite terms: why such hysteria about Super PACs and
> Citizens United? To justify the effort to limit the speech of one's
> political opponents, that's why.
>
>
>
> Bradley A. Smith
>
> Josiah H. Blackmore II/Shirley M. Nault
>
> Professor of Law
>
> Capital University Law School
>
> 303 E. Broad St.
>
> Columbus, OH 43215
>
> 614.236.6317
>
> http://law.capital.edu/faculty/bios/bsmith.aspx
>
> ________________________________
> From: law-election-bounces at department-lists.uci.edu
> [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen
> [rhasen at law.uci.edu]
> Sent: Friday, February 24, 2012 7:51 PM
> To: law-election at uci.edu
> Subject: [EL] more news 2/24/12
>
> “Rick Santorum speaks at super PAC
> fundraiser”<http://electionlawblog.org/?p=30517>
> Posted on February 24, 2012 4:49 pm<http://electionlawblog.org/?p=30517> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Politico<http://www.politico.com/news/stories/0212/73262.html>: “Rick
> Santorum on Thursday afternoon slipped away from the campaign trail to speak
> to a fundraiser for a supportive super PAC, despite denying previous reports
> that he planned to do so.”
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30517&title=%E2%80%9CRick%20Santorum%20speaks%20at%20super%20PAC%20fundraiser%E2%80%9D&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> “Bill Maher gives $1 million to pro-Obama super PAC Priorities
> USA”<http://electionlawblog.org/?p=30514>
> Posted on February 24, 2012 1:56 pm<http://electionlawblog.org/?p=30514> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> WaPo
> reports<http://www.washingtonpost.com/blogs/election-2012/post/bill-maher-gives-1-million-to-obama-backing-super-pac-priorities-usa/2012/02/24/gIQAX6dqXR_blog.html>.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30514&title=%E2%80%9CBill%20Maher%20gives%20%241%20million%20to%20pro-Obama%20super%20PAC%20Priorities%20USA%E2%80%9D&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> Is Wendy Kaminer Related to the Abrams?<http://electionlawblog.org/?p=30510>
> Posted on February 24, 2012 12:50 pm<http://electionlawblog.org/?p=30510> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> On Super PACs: She too has now
> accused<http://www.theatlantic.com/politics/archive/12/02/the-new-york-times-disingenuous-campaign-against-citizens-united/253560/>
> the media of misrepresenting the effect of Citizens United on Super PACs.
> Please see my response to Floyd Abrams<http://electionlawblog.org/?p=28207>,
> and Dan Abrams<http://electionlawblog.org/?p=29512>.
>
> Why the pushback about whether superpacs created by Citizens United? To
> defend the Supreme Court against charges it created monster
>
> (You can watch me mix it up with Floyd Abrams about Citizens United at an
> event<http://electionlawblog.org/?p=30308> (to be webcast) at the University
> of Michigan on March 5.)
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30510&title=Is%20Wendy%20Kaminer%20Related%20to%20the%20Abrams%3F&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> “Chief justice ‘very concerned’ about November’s retention
> election”<http://electionlawblog.org/?p=30507>
> Posted on February 24, 2012 12:45 pm<http://electionlawblog.org/?p=30507> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Radio
> Iowa<http://www.radioiowa.com/2012/02/24/chief-justice-very-concerned-about-novembers-retention-election/>:
> “Four of the seven justices on the Iowa Supreme Court will be listed on
> November’s election ballot for a “retention” election and the court’s chief
> justice says he’s ‘very concerned.’ In 2010, three Iowa Supreme Court
> justices, including the former chief justice, were voted off the court after
> a campaign was launched against them because of the court’s 2009 ruling on
> same-sex marriage. The three justices appointed to replace them are on this
> November’s ballot for another retention vote, along with another justice
> who’s been on the court since 2003.”
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30507&title=%E2%80%9CChief%20justice%20%E2%80%98very%20concerned%E2%80%99%20about%20November%E2%80%99s%20retention%20election%E2%80%9D&description=>
> Posted in judicial elections<http://electionlawblog.org/?cat=19> | Comments
> Off
> Kentucky Supreme Court Blocks State Legislative
> Districts<http://electionlawblog.org/?p=30504>
> Posted on February 24, 2012 12:34 pm<http://electionlawblog.org/?p=30504> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> See
> here<http://www.kentucky.com/2012/02/24/2082072/kentucky-supreme-court-hears-oral.html>.
> The remedy is use of the 2002 districts, which could well violate one
> person, one vote. Who will sue in federal court?
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30504&title=Kentucky%20Supreme%20Court%20Blocks%20State%20Legislative%20Districts&description=>
> Posted in redistricting<http://electionlawblog.org/?cat=6> | Comments Off
> “Restore Our Future Super PAC Illegally Coordinates with the Romney
> Campaign”<http://electionlawblog.org/?p=30501>
> Posted on February 24, 2012 12:06 pm<http://electionlawblog.org/?p=30501> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Fred Wertheimer statement<http://bit.ly/zxhuHK>.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30501&title=%E2%80%9CRestore%20Our%20Future%20Super%20PAC%20Illegally%20Coordinates%20with%20the%20Romney%20Campaign%E2%80%9D&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> Bopp, Potter on NPR’s Fresh Air<http://electionlawblog.org/?p=30498>
> Posted on February 24, 2012 12:04 pm<http://electionlawblog.org/?p=30498> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Links to
> Bopp<http://www.npr.org/2012/02/23/147294511/understanding-the-impact-of-citizens-united>,
> Potter<http://www.npr.org/2012/02/23/147294509/examining-the-superpac-with-colberts-trevor-potter>.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30498&title=Bopp%2C%20Potter%20on%20NPR%E2%80%99s%20Fresh%20Air&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> “In legislatures and courtrooms, busy weeks ahead for voter
> ID”<http://electionlawblog.org/?p=30495>
> Posted on February 24, 2012 11:46 am<http://electionlawblog.org/?p=30495> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> MSNBC
> reports<http://nbcpolitics.msnbc.msn.com/_news/2012/02/24/10499137-in-legislatures-and-courtrooms-busy-weeks-ahead-for-voter-id?ocid=twitter>.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30495&title=%E2%80%9CIn%20legislatures%20and%20courtrooms%2C%20busy%20weeks%20ahead%20for%20voter%20ID%E2%80%9D&description=>
> Posted in election administration<http://electionlawblog.org/?cat=18>, The
> Voting Wars<http://electionlawblog.org/?cat=60>, voter
> id<http://electionlawblog.org/?cat=9> | Comments Off
> “Watchdog groups say recycled ’07 Romney ad violates campaign finance
> laws”<http://electionlawblog.org/?p=30492>
> Posted on February 24, 2012 11:00 am<http://electionlawblog.org/?p=30492> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Politico<http://www.politico.com/blogs/burns-haberman/2012/02/watchdog-groups-say-recycled-romney-ad-violates-campaign-115471.html>:
> “But Paul Ryan, a lawyer at the Campaign Legal Center, said the FEC’s
> regulations on coordination and republication of candidate materials are
> ‘crystal clear,’ and that Restore Our Future is violating them regardless of
> where they purchased the footage. It also doesn’t matter, he said, that the
> ad footage comes from a past election cycle.”
>
> Having looked at the relevant
> regulation<http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr109.23.htm>
> and
> background<http://www.fec.gov/law/cfr/ej_compilation/2002/2002-27_Coordinated_Independent_Expenditures.pdf#page=21>,
> I think Paul’s right.
>
> What would be the consequences if the FEC goes after Restore our Future for
> the violation? The group may eventually be be fined. But so what? That’s
> the beauty of these Super PACs. They are unaccountable and will disappear
> after the election. Any complaint won’t get decided before the election.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30492&title=%E2%80%9CWatchdog%20groups%20say%20recycled%20%E2%80%9907%20Romney%20ad%20violates%20campaign%20finance%20laws%E2%80%9D&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> “Voter Suppression Battle Just the Latest Fight to Protect the Vote;
> Disenfranchisement Is a Constant Theme Running Through African American
> History”<http://electionlawblog.org/?p=30489>
> Posted on February 24, 2012 10:48 am<http://electionlawblog.org/?p=30489> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Carl Chancellor has written this article
> <http://www.americanprogress.org/issues/2012/02/black_suffrage.html> for the
> Center for American Progress.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30489&title=%E2%80%9CVoter%20Suppression%20Battle%20Just%20the%20Latest%20Fight%20to%20Protect%20the%20Vote%3B%20Disenfranchisement%20Is%20a%20Constant%20Theme%20Running%20Through%20African%20American%20History%E2%80%9D&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> Constitutional Accountability Center Previews D.C. Circuit Argument Monday
> in LaRoque Voting Rights Act Case<http://electionlawblog.org/?p=30486>
> Posted on February 24, 2012 9:55 am<http://electionlawblog.org/?p=30486> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Here<http://theusconstitution.org/text-history/1309/voting-rights-act-back-dc-circuit-laroque-v-holder-oral-argument-preview>.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30486&title=Constitutional%20Accountability%20Center%20Previews%20D.C.%20Circuit%20Argument%20Monday%20in%20LaRoque%20Voting%20Rights%20Act%20Case&description=>
> Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments
> Off
> “Public Citizen Applauds SEC Commissioner for Speaking Out for Disclosure of
> Corporate Political Spending”<http://electionlawblog.org/?p=30482>
> Posted on February 24, 2012 9:52 am<http://electionlawblog.org/?p=30482> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Lisa
> Gilbert:<http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=3536>
> “The Securities and Exchange Commission (SEC) is getting with the times and
> is now receptive to Public Citizen’s push to require publicly traded
> companies to disclose their political spending. At today’s conference, ‘SEC
> Speaks,’ Securities and Exchange Commissioner Luis Aguilar loudly championed
> the key reform of political spending disclosure, saying that ‘investors are
> not receiving adequate disclosure, and as the investor’s advocate, the
> commission should act swiftly to rectify the situation.’”
>
> I have posted Commissioner Aguilar’s comments at this link.
> <http://electionlawblog.org/wp-content/uploads/aguilar.pdf>
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30482&title=%E2%80%9CPublic%20Citizen%20Applauds%20SEC%20Commissioner%20for%20Speaking%20Out%20for%20Disclosure%20of%20Corporate%20Political%20Spending%E2%80%9D&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> “How the South Carolina ‘dead voters’ hoax
> collapsed”<http://electionlawblog.org/?p=30479>
> Posted on February 24, 2012 9:10 am<http://electionlawblog.org/?p=30479> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Must read
> expose<http://www.southernstudies.org/2012/02/how-the-south-carolina-dead-voters-hoax-collapsed.html>
> of Fraudulent Fraud Squad, South Carolina edition.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30479&title=%E2%80%9CHow%20the%20South%20Carolina%20%E2%80%98dead%20voters%E2%80%99%20hoax%20collapsed%E2%80%9D&description=>
> Posted in election administration<http://electionlawblog.org/?cat=18>,
> fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting
> Wars<http://electionlawblog.org/?cat=60>, voter
> id<http://electionlawblog.org/?cat=9> | Comments Off
> Trevor Potter Talks to NPR’s Fresh Air about Campaign
> Finance<http://electionlawblog.org/?p=30476>
> Posted on February 24, 2012 8:51 am<http://electionlawblog.org/?p=30476> by
> Rick Hasen<http://electionlawblog.org/?author=3>
>
> Here<http://www.clcblog.org/index.php?option=com_content&view=article&id=449:trevor-potter-discusses-the-legacy-of-citizens-united-on-nprs-fresh-air>.
>
> [Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30476&title=Trevor%20Potter%20Talks%20to%20NPR%E2%80%99s%20Fresh%20Air%20about%20Campaign%20Finance&description=>
> Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments
> Off
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>

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