NYU Law Forum analyzes effects of Citizens United case on campaign finance reform (VIDEO)

The NYU Law Forum for February 17 assembled experts in campaign finance law to comment on the Supreme Court's controversial January 21 opinion in Citizens United v. Federal Election Commission, which struck down restrictions on corporate spending in elections after Citizens United, a conservative-leaning nonprofit organization that was blocked from promoting and showing a documentary critical of then-presidential candidate Hillary Clinton, brought suit. Moderated by Vice Dean Barry Friedman, the panel included Floyd Abrams, a partner at Cahill Gordon & Reindel and one of the attorneys who successfully argued Citizens United before the Court; Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law; and Monica Youn, counsel in the Democracy Program of NYU Law's Brennan Center for Justice.

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Abrams called the overturned restrictions "anathema to the First Amendment. Obviously, if any individual had made that movie and this sort of statute were in effect, I don't think there'd be much disagreement that the First Amendment would require a ruling that it was unconstitutional. To me, as to the majority of the Court, the fact that the speaker was itself a corporation, Citizens United, and had received some corporate money...doesn't change the equation.... To say that this speech, whoever put it out, is not protected by the First Amendment ought to be very troubling, and the fact that four members of the Supreme Court were prepared to sign on to the notion that this speech was not protected by the First Amendment is, or should be, very troubling indeed."

In response, Youn argued that the distinction between regulation of money and regulation of speech had been blurred in the decision: "The issue is not whether a corporation can be as rough on Hillary Clinton as it wants to, whether or not the government is going to censor or suppress the content of that message.... The question in front of the Court was, whose money do you get to use to pay for these ads?... Money is regulated all the time in ways that do not cause people to cry First Amendment foul. The regulation of money and the regulation of speech are two conceptually different things.... The idea of electoral regulation is that voters, rather than special interests, should be at the center of our political system, that at the end of the day what should count is how many votes you get, not how much money you are spending."

Issacharoff explained that what he found "extraordinary and troubling about the majority opinion and the Scalia concurrence is that it reaches beyond the prohibition on government incentives and government motives and government power and creates a broad-based entitlement theory of the First Amendment and extends this to corporations. It wasn't necessary to do this, in my view.... [The case] poses a confrontation between the two major constitutional traditions of the 20th century. One is the idea of the equality of citizens.... The other tradition is the liberty tradition, which is highly distrusting of government and highly distrusting of giving the state the power over ideas. That's why this is a great case."

Posted on February 22, 2010

Watch the full recording of this event (1 hr, 13 min):