Jurisprudence & Litigation

Montana’s Supreme Court Relies on Erroneous History in Rejecting Citizens United

In this paper, constitutional historian Robert G. Natelson explains the Montana Supreme Court’s recent decision in Western Tradition Partnership v. Attorney General, in which it won national attention when it decided that the First Amendment does not fully protect the speech and association rights of people using the corporate form within Montana. The basis for […]

Filed Under: Citizens United v. Federal Election Commission, First Amendment, Independent Speech, Jurisprudence & Litigation, Western Tradition Partnership v. Bullock Other Links, First Amendment, Independent Speech, Jurisprudence & Litigation, First Amendment, Independent Speech, Jurisprudence & Litigation, Montana

The Varieties of Corruption and the Problem of Appearance: A Response to Professor Samaha

In this article, election law attorney Robert Bauer, analyzes regulation of political speech that attempts to capture the “appearance of corruption.” According to Bauer, “the appearance of corruption may rest on the various effects of money in politics in the aggregate — on perceived corruption defined as the threat to ‘electoral integrity’ that arises from […]

Filed Under: First Amendment, Jurisprudence & Litigation, Research, "Appearance of Corruption", Robert Bauer, First Amendment, Jurisprudence & Litigation, First Amendment, Jurisprudence & Litigation

The (Non-)Effects of Campaign Finance Spending Bans on Macro Political Outcomes: Evidence From the States

In this study by University of Massachusetts, Amherst professors Raymond J. La Raja and Brian F. Schaffner, the authors seek to understand the effect of campaign finance laws on electoral and policy outcomes. Spurred by the 2010 Supreme Court decision, Citizens United v. FEC, which eliminated bans on corporate and union political spending, the study […]

Filed Under: Citizens United v. Federal Election Commission, Contributions & Limits, Expenditure, Independent Speech, Issues, Jurisprudence & Litigation, Research, Brian F. Schaffner, Raymond J. La Raja, Contribution Limits, Expenditure, Independent Speech, Jurisprudence & Litigation, Contributions & Limits, Expenditure, Independent Speech, Jurisprudence & Litigation

Don’t Feed the Alligators: Government Funding of Political Speech and the Unyielding Vigilance of the First Amendment

Academic Advisor Joel M. Gora analyzes the Supreme Court’s 2011 decision in Arizona Free Enterprise Club’s Freedom Club Pac v. Bennett, which struck down the Arizona program for providing government “triggered” matching funds in political campaigns. Under that scheme, a publicly funded candidate, whose campaign is almost wholly funded by government already, is given additional […]

Filed Under: Jurisprudence & Litigation, Research, Tax Financed Campaigns Research, Tax Financed Campaigns State, Tax-Financing, Taxpayer Financed Campaigns, Jurisprudence & Litigation, Jurisprudence & Litigation, Taxpayer Financed Campaigns, Arizona

The First Amendment…United

In this article, CCP Academic Advisor Joel M. Gora, a Professor of Law at Brooklyn Law School, offers a through recounting of the outcomes of the much maligned Supreme Court case, Citizens United v. Federal Election Commission. The article defends the case by highlighting the Court’s endorsement of First Amendment protections for the political speech of corporate, labor, and non-profit entities. In doing so, the Court reversed statutes which had previously made it illegal for these groups to speak out in elections. Aside from several more minor immediate effects, Gora explains that the lasting legacy of Citizens United lies in its enthusiastic support for the First Amendment. While overviewing the arguments of the “reformers,” who wish to regulate the political speech of the aforementioned entities, the article illustrates the deficiencies of their viewpoints when weighed against long-standing First Amendment principles. Ultimately, Gora predicts that the Citizens United decision will enable the further erosion of current speech-chilling regulatory measures—a legacy of the “reformers'” stamp on the existing campaign finance landscape.

Filed Under: Expenditure, First Amendment, Independent Speech, Issue Advocacy, Jurisprudence & Litigation, Research, Joel Gora, First Amendment, Jurisprudence & Litigation, First Amendment, Jurisprudence & Litigation

The Constitutional Right That Big Corporations Should Have But Do Not Want

In an age of much sharp political division and incipient populism, it is easy to raise emotional flags by asking the question of whether corporations should have some of the same rights as individuals. In this article, Richard A. Epstein examines the many questions that swirl around the Citizens United decision in order to expose […]

Filed Under: External Relations Sub-Pages, First Amendment, Jurisprudence & Litigation, Research, Citizens United v. Federal Election Commission, corporate speech, corporations, First Amendment, First Amendment, Jurisprudence & Litigation, First Amendment, Jurisprudence & Litigation

The Liberal Mythology of an “Activist” Court: Citizens United and Ledbetter

Opponents of the Supreme Court’s decision in Citizens United v. FEC are currently engaged in a concerted effort to redefine judicial activism. Rather than accepting the true definition of judicial activism-when a judge applies his or her own policy preferences to uphold a statute or other government action which is clearly forbidden by the Constitution-the term is being applied anytime a statute is struck down or when a court delivers an unfavorable decision. Yet, the facts of this case and an examination of the legal analysis applied by the justices in their majority opinion show that there is no merit to any of these claims. Rather, the justices followed the original meaning of the Constitution and the applicable statutes when deciding the Citizens United case. In making their decision, the justices relied on precedents set in the seminal finance cases Buckley v. Valeo and Bellotti v. First National Bank of Boston. The cynical and derisive cries of judicial activism by Citizens United‘s opponents are unfair to the justices who participated in these decisions and injure the public’s faith and confidence in the judicial system.

Filed Under: Jurisprudence & Litigation, Research, Faulty Assumptions, First Amendment, Jurisprudence & Litigation, Faulty Assumptions, First Amendment, Jurisprudence & Litigation

Judicial Recusal and Expanding Notions of Due Process

This piece considers the merits of applying the Mathews v. Eldridge balancing test when an elected judge threatens a litigant’s due process rights. We argue that this approach is particularly compelling in light of the Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co. In Caperton, the Supreme Court recognized that a litigant’s due process may be violated if the judge harbors an objective “probability of bias.” In perhaps his most vigorous dissent since joining the Court, Chief Justice Roberts posed over forty questions about the potential scope of the decision. Given the Court’s 2002 decision in Republican Party of Minnesota v. White, Justice Roberts has good reason to be concerned. In White, the Court ruled that once a state allows judges to be elected, it can’t muzzle them – candidates for judicial office have the right to announce their views on contentious issues of the day. Taken together, Caperton and White provide the makings of a constitutional crisis. On the one hand judges have a First Amendment right to say almost anything, even if it seems to effectively bind them in future cases. On the other hand, litigants have a due process right not to face a judge whom a reasonable person may deem biased given his previously advertised views. This Article argues that weighing the due process violation by using the reliable and flexible approach developed in Mathews v. Eldridge keeps both decisions intact, while protecting the rights of both the judicial candidates and the litigants.

Filed Under: Jurisprudence & Litigation, Research, Independent Speech, Jurisprudence & Litigation, Independent Speech, Jurisprudence & Litigation, West Virginia

The Per Curiam Opinion of Steel: Buckley v. Valeo as Superprecedent? Clues from Wisconsin and Vermont

Randall v. Sorrell and Wisconsin Right to Life v. FEC brought before the Supreme Court a variety of campaign finance regulations, from contribution limits and expenditure limits to restrictions on incorporated entities. Despite expressions of discomfort by many Justices with the way modern campaign finance is regulated, the Court declined to rework Buckley v. Valeo‘s […]

Filed Under: Contributions & Limits, Issue Advocacy, Jurisprudence & Litigation, Research, Buckley v. Valeo, Randall v. Sorrell, Wisconsin Right to Life v. FEC, Contribution Limits, Issue Advocacy, Jurisprudence & Litigation, Contributions & Limits, Issue Advocacy, Jurisprudence & Litigation, Vermont, Wisconsin

Fooling the Court

In this article, Capital University Law Professor and Center for Competitive Politics Chairman and Co-Founder Brad Smith addresses two 2006 Supreme Court cases relating to campaign finance. Specifically, he argues that the Court is often fundamentally misled about the nature of money in politics. Smith analyzes the factual components of recent cases League of United […]

Filed Under: Contribution Limits, Contribution Limits, Contributions & Limits, External Relations Sub-Pages, Jurisprudence & Litigation, Research, Contribution Limits, Jurisprudence & Litigation, Contributions & Limits, Jurisprudence & Litigation, Vermont

The Center for Competitive Politics is now the Institute for Free Speech.