Supreme Court

Merrick Garland on Citizens United, the First Amendment, and Campaign Finance Regulation

Examining SCOTUS nominee Merrick Garland's vote in SpeechNow.org v. FEC

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C-SPAN

In 2010 the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous en banc opinion in the case of SpeechNow.org v. Federal Election Commission. At issue was the constitutionality of federal campaign finance regulations controlling the actions of independent groups that expressly advocate for and against political candidates. David Keating, the president of SpeechNow.org, a nonprofit, argued that the First Amendment prevented Congress from forcing his group to go through the costly and burdensome process of registering as a "political committee." Keating also maintained that the First Amendment barred Congress from prohibiting individuals from contributing more than $5,000 to groups like his.

The D.C. Circuit upheld the registration requirements. However, in a notable First Amendment victory, the D.C. Circuit struck down the contribution limits. Why? "Because of the Supreme Court's recent decision in Citizens United v. FEC, the analysis is straightforward," the D.C. Circuit wrote. According to Citizens United, "independent expenditures do not corrupt or give the appearance of corruption as a matter of law." That means "the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations," the D.C. Circuit observed. "No matter which standard of review governs contribution limits, the limits on contributions to SpeechNow cannot stand."

Notably, the D.C. Circuit rejected the FEC's attempt to distinguish Citizens United, which struck down an expenditure limit, from the SpeechNow case, which dealt with a contribution limit. In other words, the D.C. Circuit had an opportunity to accept the federal government's narrowing analysis of Citizens United and it rejected that narrowing analysis. Among the judges who joined the D.C. Circuit's opinion in SpeechNow.org v. FEC was Merrick Garland, who is now President Obama's nominee to replace Justice Antonin Scalia on the U.S. Supreme Court.

Earlier today I wrote that Garland's record in criminal justice and wartime government powers cases may "come as a disappointment to many progressives." Garland's vote in SpeechNow may also come as something of a disappointment to his would-be progressive supporters.

NEXT: Donald Trump's Violent Rhetoric is Protected Speech, For Now

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  1. The D.C. Circuit upheld the registration requirements.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Nope, don’t see any text saying “except for registration and other requirements the government deems reasonable”.

    1. Gee, that’s a pretty complex statement, there. Why, the word *NO* could mean any number of things.

  2. What is his position on changing Reason mobile so the new button isn’t directly below the sign out link?

    1. Whole heartedly second

    2. Scarlo for the Supreme Court! He even supports implementing an edit button. What is your position on a feature to let a commenter check whether someone replied to one of his/her comments?

  3. This guy is one of Obama’s anti-2nd amendment toadies.

    1. Here’s hoping there’s a followup article on that, because we are one nominee away from SCOTUS repealing the 2A.

  4. “Garland’s vote in SpeechNow may also come as something of a disappointment to his would-be progressive supporters.”

    I suspect Obama’s plan is to send someone to the Senate who could be spun as a “moderate candidate” – expecting the Senate to block the nomination so that Democrats will be able to campaign against the obstructionist Republicans.

    If that’s his plan, then progs can relax, Obama isn’t going soft on Citizens United, Garland is *supposed* to go down to defeat, so his jurisprudential views won’t risk affecting the Supreme Court.

    1. Alternate scenario – “Garland was just being faithful to a bad precedent, like lower court judges have to do – when he’s one of the Supremes he won’t be bound by Citizens United any longer!”

      1. It’s good to be king!

        1. “It’s good to be king!”

          I can totally see Trump walking around the White House with a chamberpot boy following him around. Trump takes a piss right before talking to the press.

      2. Both of your scenarios are pretty plausible. I think it’s most likely that this guy is Barry’s sacrificial lamb, and he’ll nominate a full-on proggie once the Senate rejects him.

        1. If I’m the Senate, I bring him in, beat the shit out of him on 1A and 2A issues, and never hold a vote.

        2. I think your scenario is quite possible, except that as soon as the Senate caves and holds a hearing, President Obama will pull the nomination and replace him with Eric Holder (or someone worse)

  5. From Ben Fenwick, a local reporter who reported on the Murrah building bombing:

    “Merrick Garland, Obama’s nomination to the U.S. Supreme Court, handled a lot of the prosecution duties of the Oklahoma Bombing case. He acted to open the hearings to us in the press.”

    1. Get ready for the panel of OKC victims’ relatives testifying about how kind and sensitive Garland was to them.

  6. Far from encouraging, but definitely could be worse.

  7. Trump’s in-house libel lawyer is still looking better.

  8. I’m sure I’m not dropping any great insight here, but I suspect that Obama nominated someone who’s qualified for the court and good on free speech because he knows or calculates the senate won’t confirm. I think he’s banking on President Hillary going back to the tried-and-true identity politics pick for the highest court in the land.

  9. Can we just not have new SC justices? I find the prospect of Obama, or anyone running for president from either party, nominating a justice pretty unsettling.

    1. Ted Cruz actually seems like he might appoint some decent Justices. He’s just terrible on practically everything else.

      And he’s smarmy as fuck.

      1. Derp,

        You dont like him, he was highly successful as the Texas SCOTUS litigator, in the Texas legislature, and at least we can agree that as a Senator he wasn’t wishy washy or aiming to please anyone he hadn’t very publicly promised to try to please (the Texas Tea Partiers). So if we add your one compliment, we have an accomplished guy who would make a good SCOTUS nominee picker.

      2. And he’s smarmy as fuck.

        He does sort of give off the impression that at any minute he might try to sell you a used Chevy Impala.

    2. Per the constitution, we can go as low as six. But doing so carries the same warning as was given when Roosevelt floated growing the court: once you break the gentleman’s agreement, all bets are off.

  10. Just what we need. Another DEA-worshipping, fanatically prohibitionist judge. Whatever happened to Judge Bork and Maria Juana?

  11. Sorry, I just can’t trust anything Obama does. If he thinks this guy would make a good judge, then I have to think he’d be a horrible one.

  12. Why am I getting analysis of whether or not *progressives* should like the guy at *Reason*? I think progressives can figure that out for themselves.

  13. Once a Libertarian is appraised of Garland’s thoughts on privately owned firearms, such Libertarian need look no further.
    Next….

  14. The argument has been made why not negotiate with the anti gun movement to have reasonable access? There is a very definite reason why we should never even sit at the table with the Obamas or Hillarys of the government.

    Because their intent isn’t reason–it is to take away the 2nd Amendment completely. So since that is the intent they should not be negotiated with–at all. Negotiating with them is much like negotiating about the southern border. Their intent is to allow open borders. Hence why we bypassed government with the Minuteman Project in 2005.

    If executive orders or corrupt judges rulings are implemented to take away our Second Amendment we simply follow Jefferson’s prophecy. And spill the blood of tyrants to water the tree of freedom. It is not up to us to politely ask the court system to return our guns. It is our right to defend the taking of them-even if it means to take one of our guns to put a bullet between the eyes of the offender. It would not be considered a right—but a duty of Patriots.

    There was once a time when many Patriots felt the same way about injustice. So they took that right and duty and gathered together with their guns.

    It was called the First Continental Army.

    Charles Hurst. Author of THE SECOND FALL. The prophetic novel of America’s collapse. And creator of THE RUNNINGWOLF EZINE. The Patriots’ blog of common sense.

    1. I am gonna preetend I didn’t read that.

      1. Apparently the thought of resistance is unsettling to you?
        And, what reality will you create in your pretend world?

  15. Obama chose Merrick Garland for his deference to executive power and regulatory agencies. That is Obama’s priority; protecting the Regulatory State, the new bureaucracies he has put in place, staffed by his people, that will control every part of American society, beyond any democratic control. If libertarians can’t figure that out, who will?

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