Michael Kinsley intends a face slap to" liberals" by denying, as only he can (succinctly and entertainingly), that Citizens United was wrong.  He argues that the Court ruled correctly--“it was a good decision”--and vindicated First Amendment values.  He succeeds in drawing a little blood.  He notes that the same critics who say that money is not speech disagree with Citizens United precisely because they believe that money is speech, and they don't care for the volume and potential effectiveness of the speech that the decision allows for.  Fair point.  He raises the usual alarms about attempting to amend the Constitution to overturn the decision, and he concludes that the only solution to any undue corporate influence is politics: "if enough people are enraged enough by the imbalance of political power caused by money, they will vote against big money, which will turn it into a negative."

There is more something more to the dissatisfaction with Citizens United that Kinsley does not come to terms with.  It is in part an objection to the Court’s performance in the particular case.  As others not unsympathetic to the outcome but unimpressed with the work product have noted, the Court's craftsmanship left much to be desired.  It could have found for the aggrieved organization, Citizens United, on considerably narrower grounds.  Instead it chose to transform a case about in-theater and on-demand documentary distribution into a test of corporate free speech rights across the board. This level of ambition called for a high degree of execution, which was dramatically lacking in an opinion that, as Professor Michael McConnell has written, was “overly long and unfocused.”

Beyond these faults is one even more basic, which is the Court's chronic temptation to accelerate the movement of major issues from public debate and engagement to decisive judicial resolution.  The question of the corporation’s role in politics is complex and both politically and socially controversial.  There is no generally accepted answer, except that most concede that there are constitutional limits within which any such answer would have to be devised.  It would have been no sin, and the better part of wisdom, for the Court in Citizens United to have addressed as narrowly as possible the immediate issue (a nonprofit’s distribution and promotion of a political documentary), and then let the argument continue. Still better, it might have addressed the issue with the very intention of leaving space for that argument to continue.

On two occasions, during the Supreme Court argument in the McDonnell case, the Deputy Solicitor General warned the court against narrowing prosecutable public corruption standards.  It would send a "terrible message" to citizens.  After the second time, Justice Breyer said he is “not in the business” of sending messages "in a case like this."  He meant a case that raised fundamental separation of powers principles.  To what extent would vague criminal standards empower prosecutors with their considerable authority to prescribe the boundaries of acceptable political conduct?

Chief Roberts went further and said that the Court’s experience with the argument that very day might prompt doubts that the Justices were wise in Skilling have let the honest services statute pass constitutional muster.

It was in that way an extraordinary argument, highlighting through dead-end hypotheticals and confusing exchanges the ambiguity of the law--an argument that defied the best efforts at clarification of everybody involved.

FEC Commissioner Weintraub believes that she has hit upon a regulatory maneuver to stop publicly traded corporations from making independent expenditures, or unlimited contributions to independent expenditure committees.  At a time when newspaper editorialists carry on with attacks on the Commission as “worse than useless,” the Commissioner seems determined to prod the FEC to face the major “money in politics” issues of the day.

This is her theory: foreign nationals cannot make contributions or independent expenditures, which means that the FEC could establish that no corporation with foreign nationals as shareholders could engage in this political spending.  The rule would not bring about this result outright: it would require a corporation to "certify" that it was not making contributions or independent expenditures with these funds.  As a practical matter, corporations with foreign national shareholders could not risk making the certification and would forgo this political spending.  The Commissioner plans to direct lawyers to produce proposals that she and her colleagues can consider in a future rulemaking.

This is an interesting proposal, but it is generally appreciated that a Commission unable to agree on matters of lesser moment will not find a majority in favor of this one.  But even beyond that, the proposal is vulnerable to questions about its viability as a regulatory measure.

The Court's decision in Evenwel could not have been clearer, and indeed it was unanimous, that the Constitution does not command the exclusion of nonvoters from the base used for state and local legislative redistricting.  It was a full defeat of the appellants.  But the Court did not address the question—even tip its hand—on the question of whether states might have discretion to choose between total and eligible voting populations.  Rick Pildes correctly writes that the “six-member majority went out of its way to make clear that the question remains fully open whether states might be required to use population, rather than eligible voters.”

The key parts of this judgment are “went out of its way” and “the question remains fully open.”  In fact, the Court was rigorously noncommittal on the issue of state discretion.

Louisiana is arguing with the help of the indefatigable Jim Bopp that McCain-Feingold cannot limit “federal election activities”, such as GOTV and voter registration, that state and local parties conduct independently, without coordinating with their candidates. Democracy 21, the Campaign Legal Center and Public Citizen reply in a brief filed as amici that this claim is clearly foreclosed by existing precedent: the soft money limits on state parties under McCain-Feingold are contribution limits, not spending limits, and there is no protection gained from claiming to conduct independently the activities paid with these contributions.

The litigating team representing these leading reform organizations is top-notch, and so it is not a surprise in reading their brief that they do a fine job with the materials at hand. But one also sees that there is a problem—not with the advocacy, but with the state of the law.