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January 29, 2010

On Thursday, January 21, the Supreme Court handed down an opinion that dramatically altered the legal landscape of campaign finance law. In its 5-4 ruling on Citizens United vs. FEC, the court overturned two precedents, struck down key parts of the McCain-Feingold, and thrust campaign laws in 24 states — some over a century old — into legal limbo.

To find out what the ruling means for American democracy, Bill Moyers turns to Monica Youn, an attorney at NYU School of Law's Brennan Center for Justice, and Zephyr Teachout, a professor at Fordham School of Law.

Youn, who has litigated campaign finance and election laws in federal courts throughout the country, argues that by allowing corporations to spend unlimited amounts of money to support or oppose a candidate, the new reality of campaign finance may direct the focus of political parties away from people and towards corporations:
What the Supreme Court has done here is really a power play. It takes power away from the grassroots, and it puts it squarely back in the hands of corporate special interests. [...] It threatens to make these grassroots networks irrelevant. To say, you know, it's no longer going to be worthwhile for parties to look for fundraising opportunities, $20, $100, even $2,400 at a time, if they can just have multimillion dollar support directly from corporate treasuries.
Beyond its practical implications to campaigning, Teachout believes that the majority opinion rests on a troubling view of corporations' rights in American democracy:
I encourage people to read this opinion because there's some really weird sections. Where Justice Kennedy says 'Government cannot stop people from speaking. And anyone who it stops--' I'm not quoting exactly, but there's pronoun switches that put who and those and they switching people and corporations in and out. And it seems like-...if you almost read it as a literary text, he does have this respect for these legal creations as individuals whose political interests we ought respect.... then he quotes from Scalia 'The sort of best advocates for the most important actors in our economy. The most important interests in our economy.'"
Both Teachout and Youn believe the decision encourages corporations to take an active role in elections as though they are individuals. In doing so, they argue, it distorts core ideals of American democracy. Youn sums up, "The First Amendment is an important part of our Constitution, but so is the idea that this is a democracy. This is a society based on the idea of one person, one vote. And our elections should not be marketplaces. They should be about voters. They should be about helping the electorate make an informed decision."

Background on Citizens United v. FEC

Citizens United v. The Federal Election Commission grew from a limited question about a political documentary to a broad challenge to the government's right to restrict corporations from spending money to support or oppose political candidates.

Encompassing questions on First Amendment rights, the power of corporations and the influence of money on political elections, the case has created an assortment of strange bedfellows. Conservatives and liberals appear on both sides, either to defend the government's right to restrict corporate political advocacy or, on the other side, to argue that such regulations are a violation of the First Amendment.

When the court first announced it would be reconsidering the case last September, Bill Moyers spoke with two prominent lawyers involved in the case: Trevor Potter, president and general counsel of The Campaign Legal Center, who submitted a brief to the court in support of the F.E.C.; and Floyd Abrams, a First Amendment attorney, who argued before the court on behalf of Citizens United.

>>View the interview with Trevor Potter and Floyd Abrams here.

At the center of this case is a 2008 political documentary, HILLARY: THE MOVIE, which sought to portray then presidential contender Hillary Clinton as a dangerous threat to the United States. The Federal Election Commission considered it an electioneering communication, funded by a corporation, and therefore subject to McCain-Feingold restrictions.

When the case appeared before the Supreme Court last session, in early 2009, the question was only whether HILLARY: THE MOVIE was an electioneering communication, but the court broadened the case in the re-argument. According to THE NEW YORK TIMES' Adam Liptik, "some of the broader issues implicated by the case were only glancingly discussed in the first round of briefs, and some justices may have felt reluctant to take a major step without fuller consideration." In its January 21 decision, the court overruled two previous decisions that upheld the government's right to limit certain types of corporate political advocacy — the 1990 decision in Austin v. Michigan State Chamber of Commerce, which upheld a Michigan state law, and the 2003 decision in McConnell v. Federal Election Commission, which upheld McCain-Feingold.

>>Read a selection of documents related the case.

>>Learn more about the history of campaign finance regulation.

Monica Youn
Photo by Robin Holland Monica Youn works as an attorney in the Democracy Program of the Brennan Center for Justice at NYU School of Law. Youn directs the Brennan Center's campaign finance reform / money in politics project, as well as working on other means of achieving and protecting broader participation in the political process. She was previously in private practice, and also served as law clerk to Judge John T. Noonan, Jr. in the United States Court of Appeals for the Ninth Circuit. Ms. Youn received her J.D. from Yale Law School, her M. Phil from Oxford University, where she was a Rhodes Scholar, and her B.A. from Princeton University. She has litigated campaign finance and election law issues in state and federal courts throughout the nation. Her political commentary has appeared in ROLL CALL, SLATE, and the L.A. TIMES, and she makes frequent news media appearances, speaking on money in politics issues.

Her first book of poems, BARTER, was published in 2003 by Graywolf Press; a new work, IGNATZ, is forthcoming from Four Way Books in 2010. She has received poetry fellowships from the Library of Congress, the Rockefeller Foundation, and Stanford University, and has been an adjunct professor of creative writing at Pratt Institute and Columbia University.

Zephyr Teachout
Photo by Robin Holland Zephyr R. Teachout is associate professor of law at Fordham University School of Law and visiting assistant professor of public policy at the Harvard Kennedy School. Her teaching interests are election law, federal legislation, the law governing corruption, Internet and politics, comparative law, administrative law, law of democracy and local government. She clerked for Chief Judge Edward R. Becker, Third Circuit U. S. Court of Appeals. An internationally recognized expert on the impact of the Internet on electoral politics and government, Teachout has served as the national director of the Sunlight Foundation, Washington, DC, has taught at the University of Vermont and served as director of Internet organizing for the Dean For America campaign. She was a co-founder and executive director of the Fair Trial Initiative in Durham, North Carolina, where she also served as a staff attorney at the Center for Death Penalty Litigation.

Her publications include MOUSEPADS, SHOELEATHER AND HOPE: LESSONS FROM THE HOWARD DEAN CAMPAIGN FOR THE FUTURE OF INTERNET POLITICS (Editor); "How Politicians Can Use Distributive Networks" (NEW ASSIGNMENT, November 2006); "Youtube? It's So Yesterday," (with Tim Wu) (WASHINGTON POST, November 2006), and "Powering Up Internet Campaigns," book chapter in LETS GET THIS PARTY STARTED (Rowan and Littlefield, 2005.) She is currently writing about the meaning of corruption in the American constitutional tradition. Teachout holds a BA from Yale University, and an MA and JD from Duke University.

Photos by Robin Holland.
Related Media:
Flag and GavelFloyd Abrams and Trevor Potter
One week before the Supreme Court reconvened early for a special hearing on the constitutionality of campaign finance limits for corporations, Bill Moyers sat down with lawyers contributing arguments to either side of the case: Trevor Potter, president and general counsel of The Campaign Legal Center and a former chairman of the Federal Election Commission, and Floyd Abrams, a First Amendment attorney.(February 1, 2008)

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With corruption on the minds of many voters in the 2006 midterm elections, has the new Congress made real strides in curbing the abuse of earmarks? (February 1, 2008)

A special Bill Moyers investigation into the Abramoff scandal — and the dark side of American politics. (February 1, 2008)

Capitol buildingCongressional Ethics
With Democrats in charge in DC the JOURNAL asks what's the state of the ethical reforms under consideration in Congress. (June 1, 2007)

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Robert G. Kaiser has been following Beltway politics for THE WASHINGTON POST for nearly 50 years. This week on the JOURNAL, Bill Moyers talks with Kaiser about his new book, SO DAMN MUCH MONEY: THE TRIUMPH OF LOBBYING AND THE CORROSION OF AMERICAN GOVERNMENT. (February 20, 2009)

Joan Claybrook, guest photograph by Robin HollandCan Washington Change?
Can the stranglehold of money on politics be broken? Bill Moyers sits down with Joan Claybrook, president of Public Citizen, and Bob Edgar, president and CEO of Common Cause, to discuss how Beltway business as usual may stand in the way of real change in Washington. (October 31, 2008)

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Is it time to rewrite the Constitution? Perspective from the University of Texas Law School's Sanford Levinson, author of OUR UNDEMOCRATIC CONSTITUTION. (December 21, 2007)

The Supreme Court
An unprecedented series and Web Site from PBS that explores the history, impact, and drama of America's Highest Court, The Supreme Court.

Guest photos by Robin Holland.
References and Reading:

Zephyr Teachout at Fordham University School of Law
Zephyr Teachout's faculty page.

"Supreme Injustice"
By Zephyr Teachout, THE BIG MONEY, January 21, 2010.

Monica Youn at the Brennan Center for Justice.
The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. They have lots of materials on the Citizens United v. FEC decision, and articles and media from Monica Youn.

"Giving corporations an outsized voice in elections"
By Monica Youn, LOS ANGELES TIMES, January 10, 2010.

The Sunlight Foundation Blog
The staff at the Sunlight Foundation, a non-partisan group devoted to making government more transparent and accountable, have been blogging about the background and implications of the courts ruling.

Documents Related to the Case

Citizens United v. the Federal Elections Commission
The Syllabus of the decision, along with links to the rest of the decision, available in html and pdf.

SCOTUS WIKI: Citizens United v. The Federal Election Commission
Here you can download all the documents pertaining to the case. The site also provides a summary of the case and how it has changed since the request for re-argument.

Further Analysis of the Case

"Analysis: A few open, or not so open, questions"
By Lyle Denniston, SCOTUS BLOG, January 21, 2010.

"No Time To Wait for the Effects of Citizens United"
By Mimi Marziani, BRENNAN CENTER FOR JUSTICE, January 22, 2010.

"What the Supreme Court Got Right"
By Glenn Greenwald, SALON.COM, January 22, 2010.

"Newsflash: First Amendment Upheld"
By Bradley A. Smith, THE WALL STREET JOURNAL, January 22, 2010.

"Money Grubbers"
By Richard L. Hasen, SLATE, January 21, 2010.

"The Supreme Court Rejects a Limit on Corporate-Funded Campaign Speech"
By Michael C. Dorf, FINDLAW, January 25, 2010.

History of Campaign Finance Reform

Historical background of the Federal Election Commission.
Published by the Federal Election Commission. A very brief overview of relevant campaign finance laws, their aims, and the creation of the FEC.

"A Brief History of Money and Politics"
Published by The Campaign Legal Center. Covers the history of money in politics starting in the 1800s through 2003, including major reforms, and constitutional challenges to past reforms and the BCRA.

"A Sisyphean History of Campaign Finance Reform"
by Jack Beatty, THE ATLANTIC, July 3, 2007. A brief history of reform efforts, based on Justice David Souter's dissenting opinion in the 2007 case Federal Election Commission v. Wisconsin Right to Life.

Court Challenges to campaign finance laws
Provided by Hoover Institution; covers major court cases starting with Buckley v. Valeo (1976), which challenged the Federal Election Campaign Act, through McConnel v. FEC (2003).

Also This Week:
The JOURNAL explores what the Supreme Court's decision means for campaign finance reform and the future of our democracy with legal experts Monica Youn, of the Brennan Center for Law and Justice at NYU School of Law and Zephyr Teachout, of Fordham University's School of Law.

AFL-CIO president Richard Trumka joins Bill Moyers on the JOURNAL to talk about why he thinks labor remains relevant, how labor has fared thus far under the Obama presidency, and the role he envisions for unions in the future.

Follow the money and the influence with online campaign finance and lobbying tools.

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