Today, following a spirited Senate Judiciary Committee hearing, in which Senators on both sides of the aisle debated the Roberts' Court recent decision in Citizens United v. FEC, the Constitutional Accountability Center ("CAC") released a new comprehensive report on corporations and the text and history of the Constitution. The report, entitled A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law, examines the text and history of the Constitution and the Supreme Court's treatment of corporations from the founding-era through the Court's recent decision in Citizens United. The report, which is available here, demonstrates that the Court's opinion in Citizens United is completely divorced from the text and history of the Constitution. In upcoming months, CAC and ACS will jointly sponsor a series of events designed to bring attention to the decision's departure from constitutional first principles.

As detailed in CAC President Doug Kendall's testimony this morning, the Constitution's text reflects a fundamental difference between corporations and "We the People" identified in the Constitution's preamble. Corporations do not vote, they cannot run for office, and they are not endowed by the Creator with inalienable rights. "We the People" create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons.

While the Supreme Court has long recognized that corporations may assert certain constitutional rights, corporations have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. The Court under Chief Justice John Marshall, and many times since, has emphasized that because corporations are artificial entities that receive special privileges such as perpetual life and limited liability, they are subject to greater regulation by the state. Only once before, during the darkest days of the now-repudiated Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People." And even in the Lochner era, equal rights for corporations never extended to the political process.

Citizens United is the culmination of a forty-year struggle by conservatives to reinvigorate the Lochner-era idea that corporations deserve equal constitutional rights. In 1971, Lewis Powell -- a Virginia corporate lawyer who would soon be nominated to the Supreme Court -- advised corporations to look to the courts for relief, noting that that "the judiciary may be the most important instrument for social, economic and political change." Powell's strategy started to come to fruition just seven years later in First National Bank of Boston v. Bellotti, when Powell authored a 5-4 ruling for the Court holding that limits on a corporation's ability to oppose a ballot initiative violated the First Amendment. The Citizens United ruling dramatically expands Powell's ruling, holding that corporations have the same constitutional rights to spend money on elections as living breathing persons, giving corporations a constitutional right to participate in elections for elective office for the first time in American history.

[Image via monkeyc.net.]

The Supreme Court granted certiorari in three cases for its term starting this fall, including one involving a $5 million jury verdict against the fiercely anti-gay group led by Kansas preacher Fred Phelps. SCOTUSblog's Lyle Denniston writes that in Snyder v. Phelps, the high court will focus on "a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting." Phelps and members of his Westboro Baptist Church, which consists largely of his relatives, picket funerals of soldiers as part of their campaign attacking America for allegedly being tolerant of lesbians and gay men. That campaign involves posting invective on a Web site called "godhatesfags.com," and hoisting signs at soldiers' funerals with messages like "God Hates the USA," and "Semper fi fags." When Phelps and members of his outfit picketed the funeral of Marine Lance Corporal Matthew Snyder several years ago in Maryland, his father, Albert, lodged a lawsuit against Phelps, winning a $5 million jury verdict.

But that verdict was overturned by the U.S. Court of Appeals for the Fourth Circuit. Even though the appeals court found Phelps' messages "utterly distasteful," it said they were protected by the First Amendment. The Fourth Circuit, as noted by the Religion Clause blog, also concluded that Phelps' Web site postings concerning the dead solider were "imaginative and hyperbolic rhetoric intended to spark debate."

The justices added two other cases to its next term - NASA v. Nelson and Bruesewitz v. Wyeth. Denniston also has details of those cases here. 

The Supreme Court heard argument earlier this week in Humanitarian Law Project v. Holder, an extremely important First Amendment case involving the criminal prohibition on so-called "material support" to designated terrorist organizations. Although plaintiffs' attorney Professor David Cole did a superb job of focusing the Court's attention on how the law prohibits pure political speech, lurking not far in the background was the law's effect on humanitarian assistance. Justice Anthony Kennedy, who is often a key swing vote on the Roberts Court, devoted his first question to that issue, asking whether the government could "forbid any person from giving tsunami aid to one of these organizations."

This was not an abstract hypothetical; I spent several weeks in my ancestral home of Sri Lanka doing relief work in the immediate aftermath of the tsunami. While there I saw first-hand how humanitarian organizations could not help many of the victims because they lived in territory controlled by the Liberation Tigers of Tamil Eelam, or LTTE, one of the State Department's designated terrorist organizations. (I wrote about my experience in an ACS Issue Brief, "A Hungry Child Know No Politics:" A Proposal for Reform of the Laws Governing Humanitarian Relief and "Material Support" of Terrorism.)

As the questioning returned to that issue several times, at least some of the justices seemed open to Solicitor General Elena Kagan's argument that Congress could ban such humanitarian aid consistent with the First Amendment. As Justice Kennedy put it, "if you get tsunami money that frees up your other assets for terrorist money." Professor Cole countered by focusing on some of the obvious weaknesses in the argument: if Congress can ban any support that is "fungible" with money that a designated group might otherwise spend, then what about legal support? The answer, said Kagan, was "yes . . . to the extent that a lawyer drafts a brief for the PKK or the LTTE . . . that would be prohibited."

That response did not go over well. Justice Kennedy asked if Kagan would "stick" to that view, and when she did, Justice John Paul Stevens said that meant Professor Cole's activity in this very case must be unlawful. After Justice Sonia Sotomayor expressed yet more skepticism, Justice Stephen Breyer said what others were clearly thinking: "I'm more worried about the lawyer." The specter of punishing people who form so intricate a part of the Court's daily activities obviously troubled several of the justices.

As an attorney who represents people charged with terrorism offenses on a regular basis, I too am worried about us lawyers, and was glad to see that I'm not alone. Yet the Court's sympathy for that particular class of victims struck me as rather odd. I could not help but wonder if the justices, and Kagan for that matter, would have been so sanguine about allowing the government to ban pure humanitarian assistance if they had been as close to relief workers as they were to lawyers. Would they have accepted a proscription on vital assistance to tsunami victims if they had seen the devastation I saw the day after that giant tidal wave killed 30,000 Sri Lankans in a matter of minutes? Surely if they had looked into the eyes of the children who had lost their parents in the blink of an eye, or seen the desperation on the faces of refugees who needed drinking water at the camps I visited, they would not have allowed Congress to prohibit relief groups from giving aid to the people who could most efficiently deliver it to the victims, even if they happened to be humanitarian workers who were members of the LTTE.

While the LTTE no longer controls territory in Sri Lanka, the material support laws at issue in Humanitarian Law Project continue to vex humanitarian groups around the world. The American Civil Liberties Union (for whom I work as an attorney) filed an amicus brief on behalf of nine humanitarian organizations, including the Carter Center, the Christian Peacemakers, and Human Rights Watch. The groups teach conflict resolution, provide humanitarian aid, and engage in various other activities that require them to work with designated terrorist organizations. These groups told the Court that they may be forced to severely curtail many of their activities because of the material support laws, and asked the Court to recognize that the First Amendment protects their right to provide humanitarian assistance that is intended to promote non-violent, humanitarian purposes, even if it also constitutes "material support" to the designated terrorist groups under the broad language of the Patriot Act.

As I remembered the people I had seen suffer in Sri Lanka, it filled me with great sadness to watch President Barack Obama's hand-picked representative to the Supreme Court defend a position so blind to the needs of innocent civilians. Twenty years ago, President Reagan famously authorized food aid to the Communist dictatorship in Ethiopia at the height of the Cold War, proclaiming that "a hungry child knows no politics." He could just as easily have been referring to the children of Pakistan, Colombia, Iraq, or any number of other countries today, where humanitarian groups have sought to ameliorate the misery suffered by civilian victims of war and natural disaster. The Red Cross has enshrined that same principle in its own Code of Conduct, which states that "the humanitarian imperative comes first. The right to receive humanitarian assistance, and to offer it, is a fundamental humanitarian principle which should be enjoyed by all citizens of all countries." We can only hope that Justice Kennedy and his colleagues will remember those widely-revered words, and those of the president who appointed him, as they consider how to resolve this important case.

At times during oral argument in Holder v. Humanitarian Law Project, it appeared that several of the Supreme Court justices were inclined to conclude that the federal government's "material law" support law, which bans aid to foreign terrorist groups, "may go too far," writes SCOTUSblog's Lyle Denniston. But Denniston reported that as the questioning proceeded in the hearing, it appeared far from clear how the high court would end up on what Justice Anthony Kennedy called "a difficult" case.

The case involves several American individuals and groups who want to help segments of Turkey's Kurdish population in peaceful protests, but have not done so for fear of being prosecuted under the material support law. Georgetown law professor David Cole argued before the justices that the material law is so broad that it violates the First Amendment rights of the groups he is representing, hindering humanitarian work that does not support terrorist activity. But, as Denniston notes, Justice Antonin Scalia "wondered if any kind of aid to such a group necessarily can be turned into a benefit for its violent activities."

Solicitor General Elena Kagan told the justices that the material support law was one of the government's primary tools in countering terrorism and urged the justices to uphold the law against the First Amendment challenge. 

The New York Times editorial page urged the high court to "modestly" adjust the law. "It should affirm that Congress has broad leeway in limiting assistance to terrorist groups, and in making these groups anathema, while at the same time ensuring that the most fundamental speech rights are protected, including advocacy in court, journalism, and speech that is truly independent of these groups." 

With the Senate Armed Services Committee's hearing on "Don't Ask, Don't Tell" scheduled for tomorrow, another hearing on a controversial issue is being overlooked by many.

The Supreme Court's recent campaign finance ruling in Citizens United v. FEC has drawn the ire of some on Capitol Hill. That case -- and how Congress might blunt its force before the mid-term elections -- is the topic of tomorrow's hearing before the Senate Committee on Rules and Administration, entitled "Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections."

The witness list includes two ACSblog guest contributors: Professor Heather Gerken of Yale Law School and Democracy 21's Fred Wertheimer, whose immediate reaction to the decision is available here. 

[image via www.yellowdoggereldemocrat.org]

In 1966, because of the fear of foreign influence in U.S. elections, Congress passed the Foreign Agents Registration Act. Eventually incorporated in the 1974 Federal Election Campaign Act, the law prohibits foreign governments, foreign political parties, foreign corporations and individuals with foreign citizenship from contributing, donating or spending funds, either directly or indirectly, in any U.S. election.

While this law has been important to the functioning of our democracy, the Supreme Court, in the case of Citizens United v. Federal Election Committee, has moved perilously close to abolishing it and opening the U.S. political process to foreign money, influence and--given the structure of some multinational corporations--direct pressure from foreign governments.

This change stems from the majority opinion's unprecedented elevation of corporations to equal status with individual citizens in the sphere of political speech. For convenience's sake, the law does periodically describe corporations as "legal persons" and "citizens" of the state in which they are incorporated. But in Citizens United, the majority has taken this legal short-hand literally. In the majority's opinion, courts are no longer permitted to take into consideration elements such as limited liability, perpetual life and preferential tax treatment that distinguish a corporation from an individual citizen when analyzing a corporation's rights, nor are courts are allowed to treat corporations differently from actual persons (as they have been doing since the country's founding.) After Citizens United, the law can no longer look behind the curtain of the corporate form: Citizens United commands that the law pertaining to political speech treat corporations exactly as individual citizens. Simply put, distinctions between corporations and human beings are no longer permissible and limitations on corporations' political speech are unconstitutional.

In treating corporations the same as individuals, Citizens United leaves the door wide open for foreign influence in our politics. In the case of Chinese corporations, this also means foreign government involvement. Most multinational Chinese corporations, like Haier, China Telcom, and China State Construction Engineering Corporation (CSCE), have U.S. subsidiaries. These are companies incorporated in the United States: Haier's U.S. subsidiary, Haier American Holding Corporation, China Telecom's subsidiary, China Telecom Americas, and CSCE's subsidiary, China Construction America, are all incorporated in Delaware.

Under Citizens United, all three of these subsidiaries are citizens of Delaware and enjoy the same political speech rights as any other citizen of the United States. Citizens United does not permit us to look behind their corporate veil to see their relationship to foreign corporations. But make no mistake: these subsidiaries are heavily influenced--if not outright controlled--by their Chinese parent corporation. This is not unique to Chinese corporations. In a parent-subsidiary relationship, especially for foreign corporations, there is a lot of overlap between the parent and its U.S. subsidiary; the parent usually owns a majority, if not all of the shares of the subsidiary; capital is often infused to the subsidiary from the parent; and directors from the parent's board usually sit on the subsidiary's board of directors. This is the relationship that Haier, China Telcom, and CSCE all have with their U.S. subsidiaries.

What is unique to Chinese corporations is the scope of their government ties--indeed, some are controlled outright by the Beijing government. Unlike in, say, Western Europe, places like China, Russia and Vietnam still have a fair share of government-run corporations. Haier, China Telecom and CSCE are all officially government-run. While the Chinese government does not meddle in the corporation's daily affairs, it will exert its influence if it suits the government's self-interest. For example, in 1994, Haier, a manufacturer of washing machines and refrigerators, was pressured by the Chinese government into acquiring a pharmaceutical company, a venture that ended badly.

Citizens United allows for the very real possibility of the Chinese government's direct influence in our elections through a Chinese corporation's U.S. subsidiary. While no official number exists about the number of Chinese companies with a U.S. subsidiary corporation, Dan Harris, a partner at the international law firm Harris & Moure and editor of the China Law Blog, believes that the number is substantial. "My small firm represents a number of U.S. companies that are wholly-owned by Chinese companies or by Chinese citizens and that convinces me there must be thousands of such companies in the U.S." While certainly not all of these Chinese companies with a U.S. presence are directly owned by the Chinese government, there are likely many more than just Haier, China Telecom and CSCE. And given China's vast currency reserves ($2.4 trillion, the world's largest), the Chinese government certainly has the money to spend on U.S. elections should it choose to do so. Corporations in other countries, particularly oil-rich ones like Saudi Arabia and Russia, also own U.S. subsidiaries. The threat of foreign involvement in our elections has been noted by the White House, as seen in the Obama's critique of the decision during his State of the Union, and by Congress as it explores ways to nullify Citizens Untied.

This issue wasn't completely lost on the majority in Citizens United -- they simply chose not to deal with it. While the majority hinted that there could be a compelling interest in preventing foreign nationals, foreign corporations or foreign governments from influencing the political process, the logic underlying Citizens United's literal definition of the corporation as citizen prevents this. After Citizens United, courts are no longer allowed to look behind the curtain of the corporate form to the realities of the situation or to distinguish between corporate citizens and individual ones; the majority opinion allows no leeway to examine the foreign origins of the shareholders. For the purposes of political speech, one person's U.S. citizenship, be it from a passport or from the documents of incorporation, is just as good as another's; to draw distinctions would be discriminatory.

Given that the majority in Citizens United so easily overturned it previous rulings with regard to limitations on corporate participation in elections, one ought not expect the Court to maintain any consistency when a case involving political donations from a U.S. subsidiary of a foreign corporation comes before it. The Justices will want to reach the result that American subsidiaries controlled by foreign entities cannot provide support to political activities; Justice Alito, with his mouthing of the word "not true" during Obama's State of the Union address, certainly signaled this. Such a result, however, will require the Court to overturn the logic of the corporate citizen as equal to an individual citizen. A majority will likely call this an "exception." In reality, it is more of an excuse. In either case, such a ruling will likely prove difficult to enforce.

Many Chinese corporations have American subsidiaries that are private, i.e., are not subject to the same reporting requirements as publicly-traded ones. In some states, such private corporations have no reporting requirements at all. With a private corporation, it is difficult to determine share ownership, identity of officers or even names of the directors. This difficult detective work will become the responsibility of the Federal Election Commission (FEC). Ironically, the majority in Citizens United found that the campaign finance law's requirement that corporations work through their Political Action Committees (PACs) during the law's 30-60 day quiet period was too burdensome since it required copious amounts of paperwork. Imagine the time, effort and money the FEC will be required to put out in to determining the ownership of any number of private corporations.

In equating corporate citizenship with individual citizenship, the Court does more than just disregard its own rules of precedent and stare decisis. It also provides an image of a corporation completely disconnected from reality, does a grave disservice to our political process and jeopardizes our democracy. And that, Justice Alito, is the truth.

[image via www.climaticoanalysis.org]  

On "The Daily Show with Jon Stewart," Stewart and correspondent Jon Oliver examine the Supreme Court's recent decision in Citizens United.

"If you've got Justice Anthony Kennedy on your side, you can pretty much do what you want. Without him, you're the author of an angry dissent," reports The AP's Mark Sherman.

Some fear "huge openings" for foreign corporations to sway elections.

Prof. Nate Persily asks, "What will the Supreme Court's campaign finance ruling really change?"

Possible legislative responses are assessed at SCOTUSblog.

"Money isn't speech, and corporations aren't people," says Prof. David Kairys.

Judging the Environment is collecting scores of op-eds from across the country here.

[Image via TheBronze Blog.]

With today's decision in Citizens United, the Roberts Court has proudly unveiled the Anatole France First Amendment. "The law, in its majestic impartiality, forbids the rich and poor alike to sleep under bridges and beg in the streets," Anatole France famously wrote. After today, the First Amendment, in its majestic impartiality, will allow ordinary citizens and massive corporations alike to spend as much as they desire to elect their preferred candidates to office.

In a pre-argument blog on Citizens United, I pointed out how radically the scale of money in politics would change if the Court were to hold that the First Amendment outlaws any distinction between giant corporations and individuals when it comes to electoral spending. As the Solicitor General's supplemental brief in Citizens United explains:

During the 2007-2008 election cycle . . . FEC-registered political parties spent $1.5 billion, and federal PACs spent $1.2 billion, while the Fortune 100 companies had combined revenues of $13.1 trillion and profits of $605 billion. If those 100 companies alone had devoted just one percent of their profits (or one-twentieth of one percent of their revenues) to electoral advocacy, such spending would have more than doubled the federally-reported disbursements of all American political parties and PACs combined.

One of the most striking features of the majority opinion is thus the disconnect between its rhetoric - which frames the ideal of protecting the political arena from the terrible dangers of public oversight - and the reality - namely, the massive damage the decision itself will do to the political arena and the ideal of self governance by unleashing for-profit corporate treasury funds in the electoral sphere. At the heart of this disconnect is the deeply flawed assumption that political spending by an artificial, entirely state-created entity such as a for-profit corporation serves precisely the same function of self-expression and political actualization as it does for an individual person. The amicus brief that I helped author for the American Independent Business Alliance summarized the problems with that assumption as follows:

The governance system of . . . corporations is highly successful for the pursuit of profit, making them important instruments in the economic sphere. But the very factors that make the corporate form an effective instrument of wealth accumulation are the factors that make it inappropriate for corporations to claim the full panoply of First Amendment protections for political speech and participation that are enjoyed by natural persons. Because of the way corporations are structured, corporate speech does not express the political views of any individual or group of individuals associated with the corporation. Moreover, the constraints that drive a corporation's political speech - the requirement that corporate actions all must be calibrated toward profit - directly undermine the notion that a corporation can be a free participant in the marketplace of ideas. And precisely because a corporation enjoys significant state-created economic advantages designed for the narrow purpose of furthering wealth-accumulation, corporate participation in candidate campaigns promotes market entrenchment and corrupts the political marketplace in a fundamentally undemocratic manner.

Justice Stevens' dissent picks up on these themes (and even quotes our amicus brief, the only kind of comfort the reform side is getting from campaign finance opinions these days). In Justice Stevens' words "the fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it." He continues:

Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their "personhood" often serves as a useful legal fiction. But they are not themselves members of "We the People" by whom and for whom our Constitution was established.

But the majority's decision to overrule decades of precedent in order to unleash for-profit corporate participation in the political marketplace displays an even more striking disconnect when we think about the timing of the decision. The notion of perfecting our democracy by casting off all restrictions on corporate political spending comes on the heels of massive and appalling failures of corporate governance in the economic sphere itself - the very sphere for which the corporate form was created. Unrestrained and under-regulated pursuit of corporate profit helped spark a financial meltdown that wiped out $2 trillion in retirement savings in 15 months, lost 2 million homes to foreclosure over the past two years; and saw the disappearance of 7.2 million jobs. In the wake of all this, the Roberts Court's response is to ask "What could possibly go wrong from putting corporations in charge of politics too?"

The reform movement is gearing up quickly to move from outrage to action. The responses vary. Many are calling on a renewed push for public financing of congressional elections to help give citizens a place at the table; others are urging the need for a constitutional amendment to overturn the decision; and others are proposing shareholder protection measures that would give shareholders greater control over political spending by corporations. All of these approaches have promise and should be widely debated in the coming days.

[image via www.yellowdoggereldemocrat.org]

For those concerned about special-interest spending in elections, today's Citizens United ruling was an unmistakable setback. This ruling pours gasoline on an already raging bonfire that will affect all federal and state elections. And it will pose an especially grave threat to the integrity of elected state courts.

But today's Citizens United ruling does have a silver lining: it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources. Companies running so-called independent campaigns can literally spend infinite amounts. But they do not have a constitutional right to do so anonymously.

The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.

In today's ruling, the U.S. Supreme Court said businesses can spend directly from their treasuries on federal elections-a ruling that could unleash a tsunami of campaign cash. And that's clearly just the beginning. As quickly as they can be cranked out, new lawsuits will demand equal rights for unions-and for spending on state and local elections, not just federal campaigns.

It's easy to imagine where this will lead, especially for those who focus on the specialized area of judicial elections.

Just last year, the Supreme Court faced all the potential worst-case scenarios when it issued a landmark ruling in Caperton v. Massey. In that case, a coal executive spent $3 million to elect a new justice to West Virginia's high court, as his company sought to overturn a $50 million jury award.

The U.S. Supreme Court forced the judge off the case, but it got a powerful sneak preview of what Citizens United could spawn. Remarkably, the money spent in the West Virginia election all came out of the executive's private finances. Now it's likely that he and other CEOs, as well as union chiefs, will ultimately turn business treasuries into personal election-campaign piggy banks.

Justice John Paul Stevens clearly had the Caperton case in mind when he wrote the following in his eloquent dissent:

The consequences of today's holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O'Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps "Caperton motions" will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

Given the historic purpose of campaign finance laws -- to prevent large concentrations of money from corrupting officials and undermining public trust in government -- that's hardly an inspiring prospect. And it might have been avoided had the court decided only the original question, of whether federal election law should apply to a video-on-demand documentary that criticized a presidential candidate.

So where are the silver linings in Citizens United v. Federal Election Commission? Where are election reformers now that the ruling has been handed down?

The disclosure ruling is significant, and it potentially affects all elections, federal and state. While it struck down Austin v. Michigan Chamber of Commerce's 1990 ban on corporate spending, the Supreme Court reaffirmed multiple Supreme Court rulings that campaign disclosure laws are consistent with the First Amendment. The Roberts Court, which is skeptical of campaign regulation, upheld rulings dating back to Buckley v. Valeo in 1976, which found that disclosure of election spending provides vital public information and helps combat corruption. Significantly, this ruling covers expenditures by independent campaigns whose goal is to influence election outcomes.

Lawmakers can and should now move without any fear of meaningful litigation to start a new era of sunlight on special-interest spending in all elections. And these laws should specifically bring a public accounting to the many groups that have used "independent" ad campaigns to skirt reporting rules.

One also can hope that this vote will leak some air out of a First Amendment overreach that has besieged courts in recent years. Despite statements to the contrary, federal courts have upheld most campaign finance laws against First Amendment challenges, choosing only to carve out specific exceptions, such as the "millionaire's amendment" in Davis v. FEC.

With the Supreme Court now rejecting the simplistic argument that all forms of campaign regulation violate free-speech, perhaps courts everywhere will pause and look more skeptically at the continuing assault on public financing and other laws.

This is especially true in the area of court elections. A second silver lining recent years is that the Supreme Court and lower tribunals recognize that courts have special constitutional obligations, which must be weighed against free-speech claims. In Caperton, for instance, the court said there is no First Amendment right to the judge of one's choice. A citizen can support any candidate for the bench. But if he goes to court, the Fourteenth Amendment may, for due process and fairness, require that another judge hear the case. Justice Kennedy, in the majority opinion, reaffirmed that in Citizens United.

Similarly, the conservative Fourth Circuit of Appeals unanimously upheld North Carolina's public financing law for appellate court races. In its 2008 ruling in Duke v. Leake, which the Supreme Court declined to hear, the Fourth Circuit wrote: "The concern for promoting and protecting the impartiality and independence of the judiciary ... dates back at least to our nation's founding," adding that the provisions "to protect this vital interest in an independent judiciary are within the limits placed on the state by the First Amendment."

Even if courts continue to chip away at specific campaign regulations, an argument can still be made that rulings such as Caperton and Duke v. Leake should provide a special protective shield around elections involving the courts.

No matter what, those who care about keeping courts impartial need to turn bad news into good news, by moving to enact real reforms-including disclosure, recusal, public financing and appointive systems - to make sure justice is not for sale.

[Image via HatCityBLOG.]