Blago 'Verdict': Not Earth Shattering, After All

08/27/2010 10:05 am ET | Updated May 25, 2011

The partial mistrial in the Blagojevich case is prompting a lot of discussion of its meaning. One prominent perspective, from the noted author and attorney Scott Turow, is that it reflects the need for improvement in campaign finance law, perhaps even a constitutional amendment to overturn the Supreme Court's Citizens United ruling, liberalizing the rules pertaining to corporate and union speech and political contributions.

...[T]he Constitutional amendment this nation most urgently requires is one that reverses the notion that unrestricted political spending deserves protection as free speech. Without that, who could fault a juror for looking around at contemporary political life and feeling that Rod Blagojevich had been unfairly singled out?

This is dangerously misguided. The mistrial may mean many things, but it has nothing to do with Citizens United or even campaign finance, and we should avoid overreacting with far reaching action implicating the freedom of speech of anyone.

In the first place, there was a conviction on one count and a mistrial -- not an acquittal -- on the others. A new trial on the other counts is likely in the near future.

More fundamentally, we have the accounts of the jury foreman that the inability to reach a verdict on most of the counts was based upon the "lack of a smoking gun" evidence demonstrating bribery to influence official action. Another juror remarked that the prosecution case was "all over the place". Nowhere in the foreman's account (or anywhere else) was any reference made to the campaign finance system or Citizens United.

One can say that this interim outcome was (i) the proper operation of the criminal justice system, where all reasonable doubts are resolved in favor of the accused; (ii) poor work by the prosecution; (iii) a reflection of the historically corrupt Illinois political culture, where the line between crime and politics is often obscured, at least in the minds of many political operatives; or (iv) something else.

One can reasonably argue both sides of Citizens United as both law -- were applicable precedents inappropriately overturned -- and policy -- does it give too much power to corporations and unions? Nevertheless, it was decided under the First Amendment, and is being relied upon by many corporations and unions expressing their views. In the end, it is consistent with historical norms, favoring a free market in ideas, with the remedy for "inappropriate speech" being more speech to set the record straight. Seeking to amend the Constitution to suppress speech which Mr. Turow or anyone else finds undesirable is a shocking idea, grossly disproportionate to what is at issue for society in the Blago case.

Advocating the drastic action of a constitutional amendment to limit the right of anyone to express themselves -- let alone calling it an "urgent" need, risks dire unintended consequences which strike at the heart of our democracy. Even assuming someone feels that they could draft an amendment which deals "only" with the issue in Citizens United, we risk future courts applying it much more broadly to suppress other types of speech. It is disconcerting to see Turow refer to people "find[ing] snug protection in the First Amendment, no matter how bald their desire to influence government action." As Mr. Turow well knows, the foundation of our democracy is precisely allowing all to express their desire to influence government action. There is nothing snug about the protection of the First Amendment; it is a cornerstone of our democracy!

Mr. Turow correctly notes that "people are right to wonder" why a verdict was not reached on most counts. As noted above, there are many potential explanations, although in my mind, the views of the foreman are quite instructive. As an Illinois resident, I find this sutiation embarrassing. However, it no more calls for a constitutional amendment than did the OJ Simpson acquittal dictate reduction in Fourth or Fifth Amendment protections, when the wrongs were so much more egregious. The Constitution is here to protect us from rash government action in the wake of unpopular events, and should not be tampered with lightly. Formalizing suppression of speech simply because of a questionable jury non-verdict is a gross overreaction and should be promptly rejected.

Portions of this column appeared at on Thur. August 19, 2010