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Citizens United: Another Trip to the Slaughterhouse

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I have some initial thoughts about Jeffrey Toobin’s Citizens United piece. The key takeaway for me is that Roberts’s procedural shenanigans (which don’t terribly offend me in themselves) are consistent with the key substantive problems with the opinion. My somewhat idiosyncratic take on Citizens United is that it’s sort of a Slaughterhouse Cases for the 21st century. As many of you know, in the infamous 1873 case the Supreme Court held that a Louisiana slaughterhouse monopoly didn’t violate anybody’s 14th Amendment rights — a perfectly unexceptionable outcome. The problem is that to reach this outcome Miller’s majority opinion issued radically sweeping holdings about the meaning of the 14th Amendment (“the equal protection clause provides only a narrow set of formal rights to freed slaves! The privileges and immunities was a meaningless redundancy that just protected a few minor rights that were already protected before the Civil War!”) that 1)were utterly unnecessary to decide the case, and 2)transparently wrong. As Field noted in his dissent, if we buy Miller’s reading of the p&i clause, “it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”

And so it is with Citizens United. Whether it had ruled on statutory or constitutional grounds, I think the Court was actually right to hold that the FEC didn’t have the authority to suppress the broadcast of Hillary: the Movie! But in reaching this correct outcome, the Court went far beyond what was necessary to decide the case, which might have been OK except that the Court’s ruling resulted in the preemptive acceptance of vastly less compelling First Amendment claims.

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