Three Cheers for Mike Carvin

One of the most consistently vilified decisions of the so-called conservative Supreme Court under John Roberts – indeed, the decision that led President Obama to publicly call out the conservative justices at a State of the Union address – is Citizens United, in which the Court sharply curtailed Congressional limitations on corporate campaign expenditures. It seems that Semator Patrick Leahy, chairman of the Senate Judiciary Committee, recently staged one of his show hearings, apparently for the purpose of railing against the Citizens United decision for the umpteenth time. Evidently Mike Carvin, the Jones Day litigator who argued Citizens United for the winning side, was the star of the show. From the Blog of the Legal Times (full post here):

When it was his turn, Carvin, one of the lawyers who argued before the Florida Supreme Court on behalf of George W. Bush in the 2000 election Florida recount controversy, delivered a rapid-fire commentary on such criticism of the Citizens United decision.

Carvin started out by telling the committee that he found the controversy about the decision “quite puzzling” because the decision simply reaffirmed a core principle of the First Amendment, that Congress can’t ban political speech. And “obviously,” banning spending on speech is the same thing as banning speech, he said.

“Telling the Washington Post that they can’t spend money to endorse Barack Obama is no different than telling the Washington Post they can’t endorse Barack Obama,” Carvin said. Later, he added, “Surely no one thinks you could pass a law prohibiting MSNBC from endorsing Barack Obama, even though it used to be owned by General Electric and it’s still a corporation.”

So everyone thinks some corporations have free speech rights, Carvin said — but someone needs to explain why other corporations have become “the red-headed stepchild of the Constitution that is unable to speak.”

Carvin said the argument generally goes that corporations have too much money, and too much money gives them too much speech. But he said the notion that corporations are drowning out political speech is “completely unsubstantiated rhetorical nonsense.” He referenced testimony about the Supreme Court decision in June to strike down Montana’s efforts to limit campaign contributions, a decision bound by the Citizens United decision from 2010.

Quite right. Which is why the Court got Citizens United exactly right. Kudos to Mr. Carvin.


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