Smith and Lessig agree on Citizens United

In an American-Statesman op-ed, local attorney and former Republican member of the Texas House for Travis County Terral Smith argues that the much reviled Supreme Court decision in Citizens United v. Federal Election Commission was decided correctly:

Writing the majority opinion, Justice Anthony Kennedy said “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

… The San Antonio Express-News … criticized McCain-Feingold, writing that it “makes no sense” that an incorporated newspaper can make endorsements up until the day of the election but advocacy groups cannot.

… Determining what kind of corporations can or cannot speak is not constitutionally within the purview of Congress. The First Amendment, as Justice Antonin Scalia noted, was written in “terms of speech, not speakers.”

… There is too much money in politics, but the solution is not to prohibit one group from advocacy and leave others alone.

Like Smith, Lawrence Lessig opposes restrictions on corporate speech–a position that surprised many of us in the audience of the mock constitutional convention in Louisville. Writing last February in a Huffington Post article, Lessig explains his view that

… the greatest danger of Citizens United is distraction. There are fundamental problems with America’s democracy. An overly diverse speech market is not high on that list. And while the decision in Citizens United — if things stay as they are — could create a critical threat to American democracy, that is not because corporations get to speak. The danger in this decision is that it will further cement the corrupting dependency on private funding of public campaigns that already infects our Congress. The problem in our democracy is not diversity; the problem is a Congress dependent upon the fundraisers. The problem is not corporate speech. The problem is the fundraising Congress.

In Louisville, it was pointed out that laws restricting political speech by Exxon and ConAgra also silence the ACLU and the Sierra Club.

It would be interesting to know whether Smith would endorse the Fair Elections Now Act, or would join Lessig in calling for a constitutional convention.

About Hamilton Richards

I retired in 2006 as a Senior Lecturer in Computer Sciences at The University of Texas at Austin. These days I volunteer technical support for Citizens' Climate Lobby (Austin chapter), Common Ground for Texans, (, Integrity Texas (, and several friends.
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