Citizens United hearing: The semantics of ‘freaking out’ and ‘controlling’

March 10, 2010   •  By Jeff Patch
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Smith-Leahy exchange at Senate Judiciary Committee hearing March 10, 2010

Today’s Senate Judiciary Committee hearing on Citizens United v. Federal Election Commission contained a sober exchange of views on campaign finance jurisprudence—and a few fireworks.                                

CCP Chairman Brad Smith, the father-in-law of a Vermonter, unintentionally triggered the ire of Chairman Patrick Leahy of Vermont by characterizing the response of some Green Mountain State legislators to the Supreme Court’s decision as “freaking out.”

The New York Times blog “The Caucus” reports:

Is it hyperbole to describe people’s reactions to a Supreme Court decision on campaign finance as “freaking out?”

Some senators at a Senate Judiciary Committee hearing this morning seemed to freak out at the very use of the term itself.

And we’re not even talking about the back-and-forth of late between Chief Justice John G. Roberts Jr. and the White House.

At issue is the fallout from Citizens United, a Supreme Court decision this year that has lifted restrictions on corporate and labor spending on election communications… And that’s where a debate on language came in:

One witness, Bradley Smith, a former chairman of the Federal Election Commission who supports the ruling in Citizens United, noted how rarely a decision by the nation’s highest court had provoked such hysteria.

And perhaps he wanted to stir it up a bit, because he then singled out Vermont—the beloved home of the Judiciary chairman, Senator Patrick Leahy, as a place where lawmakers have just been “freaking out” in the wake of the ruling.

Mr. Leahy took immediate umbrage—interrupting Mr. Smith in a loud bark…

When Mr. Smith, who now teaches law at Capital University in Ohio, was able to speak again, he retorted that he had been called before the Senate panel specifically to offer his opinion, and indeed, in his opinion, “they’re freaking out.”

Smith’s comments alluded to the fact that Vermont legislators initially proposed an extraordinarily silly law to counter the Citizens United decision, even though corporate and union political expenditures have long been legal in Vermont. Vermont also allows corporations and unions to contribute directly to campaigns, just like individuals—which Citizens United did not change.

In February, Senate President Pro Tempore Peter Shumlin, D-Windham, proposed a bill responding to Citizens United that would have required sponsors to identify themselves in political ads every five seconds, according to a Burlington Free Press report on their vt.Buzz blog. “I suspect the court would look skeptically on the requirement of every five seconds,” said Vermont law school professor Cheryl Hanna in an understatement of how “freaking” ridiculous the proposal is.

Sen. Shumlin also proposed draconian penalties for campaign finance violations of up to $100,000 in fines and five years in prison. If that’s not “freaking out” over a court decision that didn’t even change the state regulations in Vermont, what is?

The exchange between Smith and Sen. Leahy runs from 44:20 to 46:02 at this webcast linked at the Senate Judiciary Committee website. A rough transcript:

Leahy: Mr. Smith, thank you for taking the time.. Please go ahead.

Smith: Thank you, Chairman Leahy, ranking member Sessions and members of the committee. I appreciate the opportunity to be here this morning. Rarely does a decision provoke as much—I can’t use another word—but hysteria, as Citizens United. For example, many states, which have long allowed unlimited corporate spending- Vermont is one of those states—have suddenly swept in, in great alarm, in their legislature to say “Oh, now we must do something.” A month ago—well, I guess I should say two months ago—nobody in Vermont was clamoring to change the states election law to prevent unlimited corporate spending in campaigns. Now because the Supreme Court comes down, merely saying “Vermont, this case doesn’t affect you at all,” the people of the legislature of Vermont seem to be “freaking out,” for lack of another word. Now…

Leahy: Professor Smith, and this will come out of my time. Why don’t you let me talk about the reactions of the Vermont legislature? I think I understand it one heck of a lot better than you do.

Smith: My point, my point, Mr. Chairman, is that there’s been a great deal of reaction by people, and I could use another state, we could use Maryland if you would prefer.

Leahy: These are a group of very hard-working citizen legislators. They don’t “freak out,” to use your expression. This is a very much of a typical, far more taciturn, New England legislature. We don’t freak out, to use your term.

Smith: Senator, I’ve been called here, I think, to offer my expert opinion. In my expert opinion, they’re freakin’ out.

Later in the hearing, Smith drew verbal fire from Sen. Al Franken of Minnesota, who, as the Minneapolis Star Tribune reported, “engaged in a fairly high-brow tussle over election law with a former chair of the FEC—a disagreement that prompted the one-time official to accuse Franken of “showmanship.””:

Franken introduced a response bill this January that bars companies from political spending if, among other things, a foreign entity controls 20 percent of their business.

In written testimony, former FEC chair Bradley Smith, now with the Center for Competitive Politics, said that such a provision would unfairly allow a “non-controlling [foreign] shareholder” to limit American political spending…

Franken took issue with Smith’s classification of a 20 percent shareholder as “non-controlling” …

(The ensuing argument is complicated, but it boils down to Smith saying that state laws defining corporate control are irrelevant to their discussion. Franken contends that they are relevant since, due to Citizens United, lawmakers will have to define what constitutes a “controlling” shareholder in terms of federal election spending.)

The tone of the discussion escalated when Franken began asking for “yes or no” answers (a tactic that has led to heated exchanges in the past).

Franken: So let’s look at how states define a controlling shareholder. Yes or no, please. Do you know how Delaware, the leading state for corporate law, defines a controlling shareholder?

Smith: No I don’t, nor do I think it is relevant to the question of whether it is control.

Franken: I asked you to respond yes or no sir, and you said no.

Smith: The question is whether you actually want serious answers or whether you’re engaged in a little showmanship. If it’s the latter, I’ll accept that.

Leahy interjected: All right, Mr. Smith, that ranks with your put down of the Vermont legislature.


Jeff Patch

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