Colbert v. the Court: Why the Supreme Court Never Had a Chance

The law, lawyers, and the court.
Feb. 2 2012 5:30 PM

Colbert v. the Court

Why, in the battle over Citizens United, the Supreme Court never had a chance.

(Continued from Page 1)

The line between entertainment and the court blurred even further late last month when Colbert had former Justice John Paul Stevens on his show to discuss his dissent in Citizens United. When a 91-year-old former justice is patiently explaining to a comedian that corporations are not people, it’s clear that everything about the majority opinion has been reduced to a punch line.

Colbert took the mainstream by storm in interview after interview that schooled Americans about the insanity of Citizens United and garnered blowback from NBC White House correspondent Chuck Todd, who complained that Colbert is “making a mockery of the system” and questioned whether the real agenda was to “educate the public about the dangers of money and politics ... or simply to marginalize the Republican Party?” Then came the un-ironic defenses of the irony of Colbert and the obligatory navel-gazing about whether Colbert is in fact effecting real change or in peril of succumbing to “irony fatigue.”

At one level, this is all just comedy, and it’s hard to measure whether Colbert’s sustained attacks on the court’s campaign finance decisions are having any real impact, beyond making us laugh. On the other hand, when the New York Times declares that Colbert’s project is deadly serious, and it’s just the rest of politics that’s preposterous, something more than just theater is happening. I spoke to Trevor Potter, former chairman of the FEC and adviser to John McCain, and the man Colbert has designated his “personal lawyer,” about the consequences of Colbert’s assault on the campaign finance regime. Potter is very careful not to ascribe an end game to Colbert’s efforts but says that he has seen Colbert’s campaign finance crusade as an “opportunity to open up to the rest of the world what we lawyers already know: that the whole area of campaign finance is a mess.” He adds that Colbert’s antics are “having a real effect in terms of public understanding about how the system works” and getting people to start to think about how to fix it.

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Potter is also emphatic that the Supreme Court’s Citizens United decision is not the sole cause of the problems he sees. (You can thank the media for its bang-up job of suggesting that the court singlehandedly designed super PACs with its decision in CU). Potter says Kennedy’s majority opinion is not so much disconnected from reality but, rather, “assumed that the world would work in the way he thought it would.” (In Kennedy’s fantasy, there would be no chance of corruption, no coordination between PACs and candidates, and full disclosure of corporate contributions.) And had the FEC done its job, had Congress passed better disclosure rules, had shareholders been better able to control corporate activity, the Kennedy decision would have been less monumental. (Potter is quick to point out that the court needn’t reverse itself completely for the country to fix the worst problems in the post-CU system.) Still he adds that Citizens United “epitomizes the problem of having a court where no justice has ever run for any office, including dogcatcher.”

Of course that’s precisely the problem: The institutional aloofness that allowed the Roberts court to pen such a politically naive decision is the same blind spot that precludes them from even understanding, much less responding to, the media criticism. And as professor Lyrissa Lidsky, who teaches law at the University of Florida College of Law, reminded me last weekend, there is amazing language in Justice Kennedy’s majority in Citizens United about the need to elevate corporate speech to the same protected status as that enjoyed by the cable news shows. As Kennedy observed, “Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views.”

In other words, (if you can stand the irony) in Citizens United, the Supreme Court empowered Colbert to create a super PAC so he could answer back to, well, folks like Stephen Colbert. The opinion even notes thatMr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force.” Now, courtesy of Mr. Colbert, no one knows that better than the court itself.

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