Some reading on the Supreme Court’s campaign finance decision

I’ve been reading a bit about the decision (I’m reading it for a class next week I think – I’m, coincidentally, taking a First Amendment course this semester), and I wanted to share some real interesting reading that I’ve been doing in the blogointertubohighwayosphere. Here it is, in order:

Glenn Greenwald, one of, if not my favorite, political writer, wrote up a pretty provocative article on the decision. He takes both a self-described “First Amendment absolutist” stance to protect the First Amendment and also a practical, pragmatic look at what McCain-Feingold did and (more importantly) didn’t do. Read it here.

He wrote a follow-up to this post, after getting semi-berated by his own commentators. Read the follow-up here.

In response, Professor Lawrence Lessig, one of my legal intellectual heroes, issued a rebuttal to Greenwald’s initial post. In it, he makes probably the most nuanced and interesting case against the decision that I think I’ve read to date. His critique is  similar to the common sense critiques that have come out of the liberal/progressive crowds in recent weeks. In addition, he does a great job of legally attacking the decision in a way that I haven’t heard many legal commentators do before. You can read it here.

The crux of Lessig’s argument is the analogy he makes to Russ v. Sullivan, a 1991 Supreme Court decision upholding limits on doctors’ speech. In it, the Supreme Court said that that there was no First Amendment problem with state regulations that prevented doctors from providing certain kinds of speech/advice to their patience in family planning clinics that have received some federal funding. The logic? Since they received some government funds, the government has the right to restrict their speech in a way that wouldn’t be constitutional if they were completely free from government finance.

If that decision holds water, why not, then, can’t the government also restrict the speech of corporations that it creates? Corporations are not persons in the same way that human beings are, insofar as the rights they are afforded aren’t inalienable by virtue of their divine (or secular?) creation. Rather, they are creations of the state – the state has allowed them to exist, structured the rules by which they exist, and has regulated them in ways that it cannot regulate human beings. Why not, then, can it also restrict their speech? Read Lessig’s response for a more detailed analysis.

As for me, I’m not yet decided. I’m reading the case next week as part of a course on, coincidentally, the First Amendment. I’ll have more thoughts then. Until then, happy reading.


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