Legal Commentary

Sen. Franken?s Bad Environmental History

By Jonathan H. Adler

Senator Franken used his opening statement at the Senate Judiciary Committee?s confirmation hearing for Elena Kagan to argue that the current Supreme Court is an activist, pro-business court.  I?ve addressed such allegations before (see, e.g.,  here, here, and here), and won?t do so here.  What I found interesting was his attempt to argue that if the Court?s recent ruling in Citizens United had been decided decades earlier, key environmental and consumer protection laws would never have been enacted because major corporations would have spent millions to defeat those politicians who sought to enact such laws. This is a debatable claim in general, but is clearly wrong with regard to one of Senator Franken?s chosen examples.

In his opening statement, Senator Franken asked:  ?Do you think those laws would have stood a chance if Standard Oil and GM could have spent millions of dollars advertising against vulnerable congressmen, by name, in the last months before their elections?? Even assuming that major corporations would be willing to risk consumer backlash by entering partisan political contests so directly, this example fails.  The federal Clean Air Act, and in particular the provisions imposing nationwide emission controls on new motor vehicles, were not imposed by the major automakers.  To the contrary, the major automakers were the primary backers of federal motor vehicle emission controls, as they sought to preempt more stringent (and potentially variable) state standards. Absent automaker support, it?s questionable whether limitations on automotive emissions would ever have passed at all.

So, to answer Senator Franken?s question: Yes. The Clean Air Act would have ?stood a chance? even if GM could have spent millions of dollars on political advertising, because GM would have spent millions of dollars in support of legislators who supported federal air pollution controls.

If Senator Franken wants to argue that important federal laws would never have been adopted had Citizens United been the law at the time, he?ll have to pick a better example than this.

Full post as published by The Volokh Conspiracy on June 28, 2010 (boomark / email).