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Judge H. Lee Sarokin

Judge H. Lee Sarokin

Posted: September 14, 2009 03:12 PM

Freedom from Corruption v. Freedom of Speech: The Citizens United Case

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After Republican Senators sought repeated assurances from Justice Sotomayor that she would follow the law, the Constitution and precedent (stare decisis), we are about to find out whether Republican appointees to the Supreme Court likewise feel bound to carry out that same commitment. At issue in the Citizens United case (recently argued) is whether a movie very critical of Hillary Clinton violates the corporate-financed ban on certain political activities.

The ban has had a long history and is supported by a number of court precedents. Numerous federal and state laws and regulations were intent on removing powerful corporate and union influence from political campaigns, for fear that such major contributors could corrupt the system. Limits on individual contributions had the same purpose. The fear was that allowing enormous contributions from a single source could corrupt the system by making the recipient or beneficiary of such largess beholden to the contributor or certainly give that appearance.

Equally compelling are the advocates of free speech, who contend that such limitations violate the First Amendment and impose a substantial and improper impediment on free speech. The case could easily be resolved by concluding that this particular movie did not violate the exiting ban. However, there is a sense that the Court may go well beyond that narrow holding, and put at end to the ban on corporate giving in elections. This is a profound and difficult issue. Both arguments have merit. How the Court decides the case will not only substantially influence the conduct of future elections, but it will say a great deal about the future of the Court itself.