Monday, February 1, 2010
I anticipated the move that Rick has made--hey, I'm not stupid--and anticipated too that Rick, who after all has read my book carefully in the course of reviewing it for Commonweal (thanks, Rick), would be the one to make the move. The passage in my book that Rick cites is about cases in which there are First Amendment--political process--values on one side and non-political-process values on the other. But in Citizens United there were political process values on both sides! And, so, the Thayerian presumption stands: There is no reason in such a case for a majority of the Court to act imperially by insisting on its own judgment that the legislation at issue disserves political process values if the competing judgment that the legislation serves political process values is a reasonable one.
Marc DeGirolami's comments, in the thread following Rick's post, are right on target! In particular: Perhaps the Thayerian presumption should stand even in cases in which there are political process values on one side and non-political-process values on the other. But for better or worse, Mark, I'm not there yet ... and in any event don't need to go that far to put Rick in check.
(By the way, it greatly misconceives the constitutional question in Citizens United to say, as the majority did, that the federal legislation penalized individuals for speaking politically. The legislation didn't penalize anyone for speaking politically. Rather, the legislation penalized individuals for paying for their speaking politically with funds out of a corporations's (or union's) general treasury. Compare that with a law that penalizes an individual, or group of individuals, for paying for their speaking politically with funds out of their own pockets.)