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Lawrence Lessig and Nick Gillespie
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February 5, 2010

The Supreme Court's January 2010 decision of the Citizen's United v. Federal Election Commission on campaign finance regulations has caused a stir around the political spectrum. A poll from Angus Reid Public Opinion found that 65 percent of people surveyed disagreed with the Supreme Court's decision — 67 percent of Democrats, 63 percent of Republicans, and 72 percent of independents.

Libertarian journalist Nick Gillespie says all that worry is misplaced in a much-watched video "Three Reasons Not to Sweat Citizens United." "If you want to get bent out of shape about something, direct your ire at a massive and constantly growing government that has its hands in virtually every aspect of economic and social life in America," Says Gillespie.

Harvard legal scholar Lawrence Lessig disagrees, viewing the ruling as a another step in the takeover of democracy by big money. In an article for THE NATION entitled "How to Get Our Democracy Back: If You Want Change, You Have to Change Congress," Lessig calls for a constitutional convention to make public financing of campaigns the law of the land, "What both sides must come to see is that the reform of neither is possible until we solve our first problem first — the dependency of the Fundraising Congress."

Background on Citizens United v. FEC

On the January 29, 2010 edition of the JOURNAL legal scholars Monica Youn and Zephyr Teachout laid out their concerns about the ruling. Watch that interview and get more information about the case and ruling below.

>>View the interview with Monica Youn and Zephyr Teachout

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.

Lawrence Lessig
Photo by Robin HollandLawrence Lessig is the director of the Edmond J. Safra Foundation Center for Ethics at Harvard University, and a professor of law at Harvard Law School. Prior to returning to Harvard, Lessig was a professor of law at Stanford Law School (where he was founder of Stanford's Center for Internet and Society), Harvard Law School (1997-2000), and the University of Chicago Law School. Lessig clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.

For much of his academic career, Lessig has focused on law and technology, especially as it affects copyright. He is the author of five books on the subject — REMIX (2008), CODE V2 (2007), FREE CULTURE (2004), THE FUTURE OF IDEAS (2001) and CODE AND OTHER LAWS OF CYBERSPACE (1999) — and has served as lead counsel in a number of important cases marking the boundaries of copyright law in a digital age, including Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act, and Golan v. Holder. His current work at the EJ Safra Lab oversees a 5-year research project addressing institutional corruption in a number of contexts.

Lessig has won numerous awards, including the Free Software Foundation's Freedom Award, and was named one of Scientific American's Top 50 Visionaries. Lessig serves on the boards of Creative Commons, MAPLight, Brave New Film Foundation, Change Congress, The American Academy, Berlin, Freedom House and iCommons.org. He is on the advisory board of the Sunlight Foundation. He has previously served on the boards of the Free Software Foundation, the Software Freedom Law Center, Electronic Frontier Foundation, the Public Library of Science, Free Press, and Public Knowledge. Lessig was also a columnist for WIRED, RED HERRING, and the INDUSTRY STANDARD.

Lessig earned a BA in economics and a BS in management from the University of Pennsylvania, an MA in philosophy from Cambridge, and a JD from Yale.

Nick Gillespie
Photo by Robin Holland Nick Gillespie is editor in chief of REASON.TV and REASON.COM, which draws 2.5 million visits per month and features the staff weblog "Hit & Run," named by PLAYBOY, WASHINGTONIAN, and others as one of the best political blogs.

Gillespie served as REASON magazine's editor in chief from 2000 to 2008. Under his direction, REASON won the 2005 Western Publications Association "Maggie" Award for Best Political Magazine. Gillespie originally joined Reason's staff in 1993 as an assistant editor and ascended to the top slot in 2000. In 2004, Gillespie edited the book CHOICE: THE BEST OF REASON, an anthology of the magazine's best articles.

Gillespie's work has appeared in THE NEW YORK TIMES, THE WASHINGTON POST, THE WALL STREET JOURNAL, THE LOS ANGELES TIMES, THE NEW YORK POST, SLATE, SALON, TIME.COM, MARKETPLACE, and numerous other publications. He is a frequent commentator on radio and television networks such as NATIONAL PUBLIC RADIO, CNBC, CNN, C-SPAN, FOX NEWS CHANNEL and MSNBC.

In 1996, Gillespie received his Ph.D. in English literature from the State University of New York at Buffalo.

Guest photos by Robin Holland.
Related Media:
Flag and GavelMonica Youn and Zephyr Teachout
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. (January 29, 2010)

Flag and GavelFloyd Abrams and Trevor Potter
In 2008 before the Supreme Court reconvened 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.(September 4, 2009)

Iraqi refugeesEarmark Reform
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? (July 27, 2007)

Buying the WarCAPITOL CRIMES
A special Bill Moyers investigation into the Abramoff scandal — and the dark side of American politics. (October 2006)


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)

Medical practitionersRobert Kaiser
Robert G. Kaiser has been following Beltway politics for THE WASHINGTON POST for nearly 50 years. 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)

OSanford Levinson
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.

References and Reading:
Lessig and Gillespie

Lawrence Lessig
Lessig's Web site hosts articles and a blog.

"How to Get Our Democracy Back:If You Want Change, You Have to Change Congress,"
Lawrence Lessig, THE NATION, February 4, 2010.

Edmond J. Safra Foundation Center for Ethics
Site for the Harvard University center on practical ethics.

Fix Congress First
Web site for the movement for a constituional convention to draft a new amendment on public financing of elections. It is run by Change Congress, a non-partisan advocacy organization whose sole purpose is to protect the independence of Congress by fighting the influence of money in politics.

"Three Reasons Not to Sweat Citizens United."
Nick Gillespie on Reason.tv.

REASON Online
Find out more about the guiding principles of REASON — tagline "Offend Leftists, Annoy Conservatives" — in the online version of the magazine. The site holds an extensive free archive of the print edition too. The magazine Web site has a number of pieces about the court decision.

Hit & Run: The REASON blog
Recent posts on the REASON blog include: "Moore and Castro, Sittin' in a Tree," reflections on the anniversary of the birth control pill and musings on "ridiculous intellectual property lawsuits" brought by corporate giants like Colonel Saunders.

Reason Foundation
Delve further into the REASON's public policy issues. Recent position papers address matters from recycling: "The Rush to Ban Incandescent Light Bulbs and Plastic Bags," to immigration reform: "Reagan Embraced Amnesty, So Should Bush," to smokers' rights: "Politicians try to fund pet projects, raise revenues by sticking it to smokers."

Documents Related to the Case

Citizens United v. 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. 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 Bi-Partisan Campaign Reform Act (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).

Resources

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.

>Get additional online tools for tracking money in politics.

Also This Week:
DEBATING CITIZENS UNITED V. FEC
Libertarian journalist Nick Gillespie and legal scholar Lawrence Lessig discuss public financing of campaigns and the effects of money on politics.

WHAT'S NEXT FOR CAMPAIGN FINANCE?
In the wake of a controversial Supreme Court decision giving corporations and unions more freedom to spend on elections, many federal and state lawmakers are hoping to curb Citizens United V. FEC's effect on elections. Find out how some legislators are fighting to curb Big Money spending even as the Court invalidates laws in 24 states aimed at keeping elections clean.
>>CURRENT STATE LAWS AFFECTED BY THE CASE

MOYERS ON MONEY AND POLITICS
View highlights of our coverage of money and politics: campaign finance, lobbying, earmarks and more.

DR. MARGARET FLOWERS ON MEDICARE FOR ALL
Pediatrician Margaret Flowers speaks about protesting for change and her recent arrest in an effort to get a Medicare-for-all plan back on the table.

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