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April 2, 2014

Is there any likely sentencing or (private) prison reform aspect to big SCOTUS political speech ruling?

The big SCOTUS news this morning is the split 5-4 First Amendment ruling in McCutcheon v. FEC (available here). This press report on the ruling from the Los Angeles Times provides the basics: 

The Supreme Court on Wednesday freed wealthy donors to give more money directly to congressional candidates, extending its controversial 2010 Citizens United decision that opened the door for unlimited independent spending on political issues.

In a 5-4 decision, the court’s conservative majority struck down Watergate-era aggregate limits that barred political donors from giving more than $123,000 a year in total to candidates running for seats in the House of Representatives or Senate. The court said this limit violated the free-speech rights of the donors, and it was not needed to prevent “corruption” of the political process. The justices noted that donors mush still abide by rules that prevent them from giving more than $2,600 per election per candidate.

Chief Justice John G. Roberts Jr., speaking for the court, said the 1st Amendment protects a citizen’s free-speech right to give to candidates. “Money in politics may at times seem repugnant to some, but so too does much of what the 1st Amendment protects,” he said. If it protects “flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

Justice Stephen G. Breyer, speaking for the four dissenters, said the court had opened a huge legal loophole that threatens the integrity of elections. “Taken together with Citizens United, today’s decision eviscerates our nation’s campaign finance laws,” he said.

The question in the title of this post highlights that I am always a blogging criminal justice hammer seeing every important SCOTUS ruling as a possible sentencing nail. Without even reading the full opinion, I wonder if this ruling might end up helping (1) some white-collar defendants and their wealthy friends better support federal legislators and candidates who advocate sentencing reform in arenas that impact these kinds of defendants, and/or (2) private prison companies and their executives support federal legislators and candidates who advocate for continued or expanded reliance on private prisons.

As usual, I am sure I am stretching a bit to view a non-sentencing story as having significant potential sentencing echoes. But maybe readers agree that there could be something to these early post-McCutcheon speculations.

April 2, 2014 at 11:18 AM | Permalink


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Thanks for posting this, Douglas.

It illustrates perfectly the sick mental processes of the liberal block of SCOTUS and the bench in general.

Breyer has a God complex, thinking it is the job of 9 people in robes to save the world (or at least the "integrity of elections.") It is not. Their job is to follow the law/constitutional principles.

Posted by: TarlsQtr | Apr 2, 2014 1:32:07 PM

The problem is not spending money for legislative treats here. I doubt that any candidate would publicly support such a "right wing" position. However, one can also ask the same of the left with regard to buying candidates for their position with the same lack of limited funding.

While Professor Berman's projections make sense to a certain degree, the problem is that this is such a low-hanging fruit campaign issue for opponents, who would normally have to manufacture such a projection in the first place.

Posted by: Eric Knight | Apr 2, 2014 2:50:20 PM

TarlsQtr --

"Their job is to follow the law/constitutional principles."

What, are you some kind of right wing freak?

Posted by: Bill Otis | Apr 2, 2014 3:14:42 PM

"... today’s decision eviscerates our nation’s campaign finance laws..."

without a doubt...

Posted by: Eric G. | Apr 2, 2014 4:14:22 PM

Eric G. --

"... today’s decision eviscerates our state's education laws..."
Attorney for Board of Education, circa 1954.

Posted by: Bill Otis | Apr 2, 2014 4:52:20 PM

Doug, for thirty years I have maintained that the popular election of judges places undue pressure on judges by putting them in positions that if they make a legally correct, but unpopular, decision in a highly publicized case they jeopardize their job. Even Justice Scalia in Republican Party v White talks about the due process implications of elected judges being placed in a position of making unpopular decisions in highly publicized cases.

In the past thirty years, social media, cable t.v., polarized political climate, etc. have led to "instant accountability" imposed on judges. This decision only elevates my concern about the pressures imposed on judges to rule unaffected by concerns for their own jobs.


Posted by: bruce cunningham | Apr 2, 2014 5:24:20 PM

Now I can spend my millions on thousands of right-wing Paul-Ryan types who will vote more and more ways to save me money and stop spending on the poor, moocher- parasite- food-stamp types, who keep crying for my hard-earned money that I earned though capital gains. And they have the gall to cry for ever more extended unemployment benefits. Enough you free-loader welfare queens. Let the poor sweep the streets, eat cake, and sleep under bridges.

Posted by: happy plutocrat | Apr 2, 2014 9:03:04 PM

"Their job is to follow the law/constitutional principles."

i.e., vote the way that suits my own prejudices.

Posted by: Daniel | Apr 3, 2014 2:37:02 AM

it is, of course, debatable whether "money = speech full stop" is a proper constitutional principle

Posted by: anon | Apr 3, 2014 1:00:47 PM

happy plutocrat --

I didn't know George Soros contributed to Paul Ryan.

Posted by: Bill Otis | Apr 3, 2014 5:08:21 PM

I do not think conservatives should start their touchdown dance on this i.e this ruling will overall benefit the advocacy of their positions. Warren Buffett and George Soros have just as much money as the Koch Bros.

Posted by: Matt Faler | Apr 4, 2014 12:12:27 AM

anon stated: "it is, of course, debatable whether "money = speech full stop" is a proper constitutional principle..."

Did political donations start in 1900? 1950? 1970? 2000? Or has it always been in place, since the days that those who ratified the document were in office and had a chance to stop the practice?

If it was speech in 1800 it is speech today.

Posted by: TarlsQtr | Apr 4, 2014 11:34:31 AM

@Matt Faler-I have no idea if you are a liberal but it is the typical liberal perspective and undermines our Republic.

A true conservative (I freely admit the existence of A LOT of faux ones, especially in office with an "R" after their name) does not support a position because it benefits them politically. They support it because it is constitutionally correct.

Posted by: TarlsQtr | Apr 4, 2014 11:38:41 AM

Assuming now that money equals free speech, I guess a furthier assumption could be made that unlimited money equates to unlimited free speech, correct???

Posted by: Mo' Money please | Apr 7, 2014 5:32:46 PM

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