Legal Commentary

A new Washington Post-ABC News poll reports that around 80% of Americans disapprove of the Supreme Court's decision in Citizens United.

It is unclear to me, from reading the reports of the poll, whether Americans disapprove of unlimited campaign contributions by corporations, or whether they believe that the Supreme Court got it wrong as a legal matter.  But my suspicion is that it is the former.

In that case, should we care?  Assume, purely for the sake of argument, that the Supreme Court got it right as a matter of First Amendment jurisprudence.  What, then, should we make of American's opinions?  One option is to ignore this altogether.  Constitutional law isn't a popularity contest, and perhaps Americans are just seeing a less desirable manifestation of the freedom of speech.

Another option is to consider how public opinion should influence the congressional or political response.  Two broad solutions have been proposed:  the first is a new statute that drafters claim "would pass constitutional muster" which is an attempt to redefine limits on campaign contributions.  The second is to try and pass a constitutional amendment that would ban campaign contributions by corporations.

What Americans think about why the Supreme Court went wrong, and not just the fact that they got it wrong should inform how either of these solutions are crafted, and which of the two solutions it is best to pursue.  Constitutional amendments are daunting, scary processes, but perhaps this level of bipartisan support indicates are real possibility for success.  On the other hand, a federal statute that either does not pass constitutional muster and/or does not really address the concerns that Americans are addressing does not seem like a particularly strong response.  But it is a response at all, and the concern is that ineffective congressional action will be mistaken for a "strong" response that "stands up" to the Supreme Court.