Citizens United and Lochnerism

Here’s a wonderful article by Lawrence Lessig from a while back on the Citizens United Supreme Court case, which prohibited congress from regulating independent campaign expenditures by corporations:

Lawrence Lessig, Democracy after Citizens United

This is linked off of rootstrikers.org, but I hadn’t read it in detail before. His core argument is great: in key places in their decisions, the justices made statements such as

The appearance of influence or access … 
will not cause the electorate to lose faith in our democracy.

Apparently the legal term for this is Lochnerism, which means to present an issue as being a matter of interpretation and opinion when it’s actually a factual question. From the article (emphasis added):

Does the influence or threat of independent expenditures within the economy of influence that is privately funded campaigns further weaken the effectiveness of Congress to do its job? Does it further weaken public trust of Congress by confirming that “money buys results”?

Again, the answer depends on the facts. It is not simply a matter of logic, but instead hangs upon the actual expectations of an actual public. I have my intuitions. Maybe they are wrong. Maybe American cynicism is already so great that even a radical increase in a conflicting dependency won’t further weaken public trust.

Lochnerism, however, will not permit us to know. So long as First Amendment Lochnerism prevails on this Court, so long as Justices are prepared to let their own factual speculations trump legislative fact-finding, and so long as judicial intuitions about the impact of disclosure requirements are permitted to decide the issue, Congress will be unable to address institutional corruption directly by limiting expenditures that create a reality or appearance of unacceptable dependency.

Ah, facts.

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