#SCOTUS Didn’t Mean It When They Said It Dep’t

Brad Smith trying to recast the holding of Citizens United in the NYT:

“The court’s position is pretty simple, and it is not that independent expenditures can never create gratitude in an officeholder,” said Bradley A. Smith, a professor of law at Capital University Law School. “Rather it is that as a constitutional matter, they do not pose a threat of corruption sufficient to justify the invasions of First Amendment rights that the ‘reformers’ crave.”

Here’s what the Court actually said in Citizens United:

The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . expenditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley‘s reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555-557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption.

I explain how the Court significantly narrowed the definition of corruption in Citizens United in my Michigan Law Review article, Citizens United and the Illusion of Coherence. It is a trend that was extended from expenditures to contributions in last year’s McCutcheon case.



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