Jan 25, 2010 by Bruce
Apparently the ACLU didn’t get the memo about Citizens United
Re my earlier post, I have to point out a delicious irony to this court decision. Although the libs from the Oval Office to the New York Times are weeping and wailing about the Citizens United decision, one group that asked for the very result that the Court delivered was the American Civil Liberties Union. Yep, that’s the very same ACLU that loves to prevent speech when it happens to be religious and anywhere near a public square. But like other advocacy organizations, the ACLU wants the right to speak out on issues of public interest at election time on behalf of its membership. What’s that old saying about a broken clock being right twice a day?
Their friend-of-the-court brief is here if you don’t believe me.
And by the way, I keep reading from the aggrieved Left that Citizens United overturned a 1907 law prohibiting corporate funding to campaigns. I’m not sure where that argument comes from. Citizens United left intact the statutory prohibition about direct corporate contributions to campaigns first enacted in 1907 and re-enacted in 1971. I guess the 1907 date helps set up the false argument for so-called “conservative activism.” Nice try.
Since the ACLU, big labor unions, the Sierra Club, and all of George Soros’ lefty organizations all benefit from the Citizens United decision to the same extent as any corporation, it’s still puzzling, (and yet amusing) to hear the end-of-the-world-as-we-know-it rhetoric from the Left.
I guess the term “judicial activism” is not just for the left wing of the court anymore!
As you and I often do, we disagree on this one. Whatever “judicial activism” is, one thing it is NOT is applying the actual language of the First Amendment in its exact wording: “Congress shall make no law…abridging the freedom of speech…” Prohibiting speech by prohibiting the expenditure of money it takes to speak is disingenuous, and almost every type of speech other than face to face speech requires money to express it.
The Citizens United decision doesn’t even give me pause on the question of judicial activism. The Court didn’t look to penumbras and emanations to create a constitutional “right.” They applied the plain language of an actual right.
Let me just ask you – if a liberal majority was presented with a case, and then asked for them to come and argue on bigger issues to expand the scope of the case – and then forget about precedent beforehand – would you come up with the same conclusion?
I also worry about the truth process of senate hearings, as Roberts spoke against this very topic of the precedent of cases. Even before this case was ruled, articles talked about this contradiction if he ended up ruling like we knew he would rule.
The ruling itself? Probably not going to cause the world to collapse – though as a Christian I mourn a bit anytime individuals lose a bit of their voice in this country. We all know corporations have money to spend- more than you and I – and we all know money is power in politics.
I would phrase your shoe-on-the-other-foot question this way: If a liberal majority was presented with a case, who then asked the parties to address a constitutional question that was previously addressed and decided by the lower court in that case (but neither party appealed that particular part of the lower court decision) – and then overruled a 20 year old precedent based on an originalist analysis and interpretation of a constitutional provision – would I come up with the same conclusion? Answer – I may not like that decision, but I would not describe that as an “activist” decision.
The whole additional-briefing/additional question thing is a not uncommon occurrence, so that doesn’t raise my “judicial activism” antenna at all. And overruling precedent is not an indication either. Where would we be if Dred Scott and Plessy v. Ferguson were still good law?
The argument comes from the belief that it makes the Tillman Act worthless, though in fact the act still does today what it did in 1907.
There’s been a lot of truth-stretching on this issue on all sides, including major discussions of the decision and the judicial arguments that don’t even mention the first amendment. While the ACLU is in the minority in the left on this, they’re by no means alone. See Glenn Greenwald, Jonathan Turley. I’m in the first amendment trumps all camp as well.
In fact the court has been ducking the first amendment issue on this for a long time, and its sudden consideration is a result of a concerted effort by the right to get the proper cases before the court and the new majority to grant cert for them.
That doesn’t mean there isn’t a great deal of conservative activism in this, as Justice Stevens suggests in his dissent. He spends more time assailing the majority for their capriciousness and inconsistency than he does on the case itself.
I’m assuming those who believe this is a major precedent reversal view Wisconsin Right to Life as an affirmation of BCRA’s constitutionality, even though it struck down parts of BCRA, and then found that the ads the FEC objected to, could in fact be run. In fact, at least one congressman voted for the BCRA even though he believed it was unconstitutional.
This is a case that has the uncanny ability to cause people to talk out of both sides of their mouth, whether it be the New York Times which, in an unsigned editorial–and therefore speaking as a corporation–argues that a corporation does not have first amendment rights, or the majority which insisted the case be re-argued in a way they would be quick to assail the dissenters for as unbridled judicial activism.