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January 21, 2010

Will Citizens United ruling impact crime and justice campaign advertising?

As expected, the Supreme Court's special session today resulted in its announcement of its long-awaited decision in Citizens United.  Here are the first reports about the decision from the always-terrific SCOTUSblog (with a few edits):

Justice Kennedy writes for the Court; Justice Thomas has a partial dissent and partial concurrence.  Also dissenting in part is Justice Stevens, joined by Justices Ginsburg, Sotomayor, and Breyer.  The majority opinion by Justice Kennedy is 57 pages, Justice Stevens' partial dissent is 90 pages.

Tom Goldstein says: "Much will depend on the wording, but today's decision is a small revolution in campaign finance law.... The Court's decision overturns the previously settled distinction between corporate and individual expenditures in American elections.... The decision presumably applies equally to state and local elections, given that the Court recognizes a First Amendment right."

Lots and lots of folks smarter and more informed than me about the First Amendment and election speech will surely be opining at length about this ruling and its potential impact (which can be accessed here).  But, as is my norm in this space, I want to give this news a sentencing spin.  Specifically, I wonder if and how this "small revolution in campaign finance law" might impact criminal justice issues on the campaign trail?

Because there are not all that many corporations likely to be able to make lots of money from particular crime and justice policies, I doubt that Citizens United will dramatically impact crime and justice campaign advertising.  But, then again, maybe we will start to see private prison corporations or GPS tracking manufacturers producing campaign ads to back certain candidates or ballot initiatives that could help their bottom line.  I suppose only time will tell.

January 21, 2010 at 10:20 AM | Permalink


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I have no idea what the effect of this law will be, other than making me glad I live in a solidly one-color state (so there won't be a lot of ads airing the first place) and own a DVR (so I can fast-forward through all the New Jersey ads I still get hit with).

But I'm not sure that the focus should be on direct ties. Tough-on-crime views are likely correlated with other policy positions (pro-business or anti-union, for example). So if "tough-on-crime" sells better than "pro-business," a company with no interest in criminal justice at all may still produce or fund Willie Horton ads to advance a completely distinct agenda.

That said (http://www.youtube.com/watch?v=vhyGlGgXMxY), I'm not sure how important tough-on-crime stances are right now. Crime rates are low and staying there, and the economy is in the tank. Crime as a political issue really seems to have lost a lot of its steam. At least in the short run, I doubt we'll see much Hortonizing going on.

Posted by: John Pfaff | Jan 21, 2010 11:47:32 AM

My understanding of the ruling is that it will apply to unions as well, which might further galvanize the already influential California corrections officers union.

Posted by: Shawn | Jan 21, 2010 11:48:29 AM

Should I be holding my breath for conservatives to claim the conservative judges in the majority are "judicial activists"??? If they had any principle, they'd be shouting from the rooftops..."These 5 non-elected judges have overturned a democratically enacted law and based the decision on a policy preference that has never been recognized in American history" (...that corporations must be treated identically to individuals in the political sphere).

Come on "judicial-activist-hating" conservatives...I'm waiting.

Posted by: non | Jan 21, 2010 12:25:32 PM

non, i guess you dont understand the words, "Congress shall make no law . . . ."

Posted by: federalist | Jan 21, 2010 12:59:00 PM

Read More News :; (Citizens United) http://usspost.com/citizens-united-4311/

Posted by: UssPost | Jan 21, 2010 1:04:16 PM

non --

Enjoy your wait. Meanwhile, I'll enjoy my First Amendment rights.

Posted by: Bill Otis | Jan 21, 2010 1:44:53 PM

"Meanwhile, I'll enjoy my First Amendment rights."

Not nearly as much as corporate America will enjoy theirs.

Posted by: JC | Jan 21, 2010 2:14:08 PM

The funny thing is, among all of the liberals (and some conservatives, like McCain) wringing their hands about this result, nobody has exactly explained how Justice Kennedy got it wrong. It seems they were just wishing for a different outcome, with no idea how it was supposed to be justified under the First Amendment.

Of course, that is nothing new. Many of those who either favor or oppose Roe v. Wade, and many other decisions, do so because of what they want, not because they understand the legal principles involved.

I have no idea whether today’s decision will have the dire outcome that some have predicted. But Kennedy’s decision seems obviously correct. I don’t see how “Congress shall make no law...” could have any clearer meaning.

Posted by: Marc Shepherd | Jan 21, 2010 3:16:52 PM

"The funny thing is, among all of the liberals (and some conservatives, like McCain) wringing their hands about this result, nobody has exactly explained how Justice Kennedy got it wrong."

You mean apart from Justice Stevens?

Posted by: JC | Jan 21, 2010 4:08:47 PM

Marc. Justice Kennedy did not get it wrong. Justice Story did.

All I ask is an amendment to the Constitution that reads in it's entirety.

"No fictitious being or thing has rights equal too or greater than that of a biological being. Congress shall promulgate such laws as necessary to define the scope of the lesser rights of fictitious beings or things."

Posted by: Daniel | Jan 21, 2010 4:26:58 PM

JC --

I'm sorry you're feeling poorly that "corporate America" will now be able to speak. We all should have known that the First Amendment protects only those persons who do NOT organize themselves as corporations.

Instead of letting corporations speak with the money they earn, 'tis far better to let ACORN speak with the money it steals. I just don't know why I didn't realize that before now.

Posted by: Bill Otis | Jan 21, 2010 7:14:33 PM

You might see impacts from this case in upcoming drug policy elections. Doesn't California have a ballot-initiative pot legalization vote (or something to that effect) this year? I could imagine special interests on both sides of that spending money on independent ads.

Posted by: Gritsforbreakfast | Jan 22, 2010 8:41:19 AM

Corporations already speak loud and clear and maybe this law will make it clearer when they do. Probably not. They will probably still hide their money behind PACS and such.

Not only do corporations speak, they are in the habit of censoring individuals. See the fascinating and entertaining This Film Is Not Yet Rated about the corporate controlled MPAA. If you ever wondered how films get their ratings and who the secret club is behind it, it is funny enlightening. It even has a First Amendment lawyer or two for S.Clause to spit at. Everyone who watches movies should see this.

Posted by: George | Jan 22, 2010 10:55:57 AM

Let's refocus a bit on how the opinion could impact criminal law. As a defense attorney I am wondering whether corporations now have rights under the Fifth Amendment? What about cases in the Justice Department pipeline for violations of campaign contribution regulations? Thoughts anyone?

Posted by: Cynthia Eddy | Feb 15, 2010 10:48:07 AM

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