Senate Holds Hearing on Supreme Court's Citizen's United Ruling
Democrats Speak Out Against September Campaign Funding Decision
John Eggerton -- Multichannel News, 3/10/2010 2:15:03 PM
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 high 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 Citizens United."
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 political speech."
Sen. Al Franken (D-Minn.) took issue with the study submitted by Smith showing that a majority (51%) of respondents approved of the decision.
Franken said he had received 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 was grandstanding.
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 Hollen (Md.) and Sen. Chuck Schumer (D-N.Y.) said they would do "everything possible to make sure this decision does not stand."
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