Senate Judiciary Debates Supreme ‘Activism’

     WASHINGTON (CN) – Senators and experts battled in the Senate Judiciary Committee on Wednesday over the Supreme Court’s recent decision to let corporations spend unlimited amounts to influence voting. Sen. Patrick Leahy, D-Vt., said the decision “turns the idea of ‘government of, by and for the people’ on its head.”




     Bradley Smith from the Center for Competitive Politics countered by calling the ruling “one of the most clearly correct decisions of the court’s term.”
     Witnesses disagreed on whether the 5-4 Citizens United v. Federal Election Commission decision ruled against a century of precedent and whether the decision silences the electoral voice of the American people.
     The backdrop to the debate was the court challenge by conservative nonprofit Citizens United to a decision by the Federal Elections Commission that stopped the airing a political film, “Hillary: The Movie,” on television before the 2008 primary elections. The group said the decision by the Federal Election Commission violated its free-speech rights.
      In one of the most controversial decisions of its term – comparable only to the ruling striking down a gun control law in Washington, D.C. – the court overturned laws limiting campaign contributions by corporations and other business entities.
     “Citizens United is an activist decision by any definition of judicial activism,” Jeffrey Rosen, a law professor at George Washington University, told the committee.
     Douglas Kendall, President of the Constitutional Accountability Center, agreed. Corporations “have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation,” he said.
     Leahy joined in, painted the ruling as conservative judicial activism and sayingit threatens the rule of law. “Five justices acted to overturn a century of law designed to protect our elections from corporate spending,” he said. The Constitution “guaranteed fundamental rights to the American people, not corporations,” he said, adding: “Corporations cannot vote in our democracy.”
     Smith said that the First Amendment protects all associations – not just individuals – from government censorship. He argued that the government’s position would have barred a union from hiring an author to write a political book. “Such a holding would not be supported by the majority of the American people, or comport with their understanding of the First Amendment,” he said.
     A poll taken by the Washington Post and ABC News shows that 80 percent of Americans oppose the court’s decision. While members of both parties objected to the ruling, Democrats objected most.
     Smith downplayed public outrage over the ruling. “People are not protesting in the streets en masse over this landmark decision,” he said, adding that the polls showing that the vast majority oppose the ruling used misleading questions.
     Rosen, who opposes the ruling, said that Chief Justice John Roberts had promoted narrow, unanimous opinions during his nomination, but that his court issued a broad divisive decision in Citizens United where it could have decided the issue more narrowly.
     “Perhaps he thought he could produce a unanimous court by convincing his liberal colleagues to come around to his side, rather than by meeting them halfway,” Rosen said.
     Citizens United had urged the justices to decide the case on narrower grounds, arguing that “Hillary: The Movie” doesn’t qualify as “electioneering communication” under campaign-finance law and that video-on-demand doesn’t constitute a commercial broadcast.
     But the Supreme Court said its ruling had to be broad, because a narrow decision would chill political speech.
     Rosen warned, “It takes only a handful of flamboyant acts of judicial activism for the court to be tarred in the public imagination as partisan”

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