As Philip Terzian noted, Justice Thomas spoke at a law school this week where he addressed student questions about the Citizens United decision. Because it's just plain fun to hear justices get candid—particularly Thomas and Scalia— I'm pulling out some quotes from the event:
“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”
It's particularly fun to see the New York Times itself run this quote, and add:
The part of the McCain-Feingold law struck down in Citizens United contained an exemption for news reports, commentaries and editorials. But Justice Thomas said that reflected a legislative choice rather than a constitutional principle.
Well, as long as the folks at the New York Times corporation have their free speech, why should we worry about anyone else's? Back to Thomas, who explains that, Constitutionally speaking, free association + free speech = corporations that can speak.
“If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association,” he said. “If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association.”
“But what if you put yourself in a corporate form?” Justice Thomas asked, suggesting that the answer must be the same.
Thomas then offers context for federal regulation of corporate speech, which pricks the notion that it's always a well-intentioned action on behalf of the little guy:
He added that the history of Congressional regulation of corporate involvement in politics had a dark side, pointing to the Tillman Act, which banned corporate contributions to federal candidates in 1907.
“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”
It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.”
Indeed, Sen. "Pitchfork" Ben Tillman is an unfortunate man to be a father of the campaign-finance reform movement. A proud racist who wanted to keep blacks from voting (at best) and "exterminate" them (at worst), he's also the father of Jim Crow laws in South Carolina.
Campaign-finance activists usually skip over Tillman's part in the establishment of campaign-finance law, preferring the mantles of Teddy Roosevelt and Elihu Root, but it was the Tillman Act that Obama himself referenced when he said, erroneously, in his State of the Union address, "last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections."
Justice Kennedy also spoke this week to students, but declined to comment on Citizens United, with this bizarre response:
According to the LAT article, Kennedy would say only that it was “important to have robust, principled debate after opinions,” and suggested that was best left to the legal community.
One questioner asked whether Kennedy felt “scolded” in the wake of the pointed criticisms of the opinion.
“He doesn’t,” Kennedy said cryptically, spurring laughter throughout the packed auditorium at Pepperdine University’s School of Law.