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Wednesday Round-up

Election Law Blog continues its coverage of Citizens United, offering several historical commentaries on the recent oral re-arguments concerning campaign finance reform. Adam Winkler details an argument for restricting corporate political spending by analyzing early Progressive Era pieces of legislation, and concludes that such restrictions exist in large part to protect the interests and rights of a company’s shareholders,  who he argues should not “be required to pay to protect their investments from unwarranted political spending.”  Robert Mutch offers a critique of Allison Hayward’s amicus brief that describes the partisanship guiding historical campaign finance legislation.  Mutch describes the circumstances surrounding several of these reforms and defends them as logical policy solutions that are more than simply a series of “partisans passing laws only as political weapons.”

BLT covers a Fourth Amendment case currently before the D.C. Circuit Court in which the DC government issued but then quickly withdrew an arrest warrant that claimed that the plaintiff had illegally carried a firearm in the District.  At issue is whether an individual can sue over the (improper) issuance of the warrant itself under the Fourth Amendment, even if it was never executed and the individual suffered no actual harm. Orin Kerr at Volokh examines some Fourth Amendment case law to try and determine when in the minutiae of the warrant process the amendment offers protection and redress.

Above the Law discusses the salaries of the federal judiciary in response to Judge Stephen Larson’s recent decision to leave the bench to pursue better-paying legal employment.  Decreasing judicial salaries provides less incentive for other leaders in the legal field, particularly firm partners, to pursue work behind the bench, and Chief Justice Roberts worries that without Congressionally approved salary increases in the near future, the judiciary will practically be composed of only “persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or…people for whom the judicial salary represents a pay increase.”

Eugene Volokh adds to the Citizens coverage at his eponymous blog, where he advances a six-point argument in favor of allowing corporations to sponsor politically oriented materials.  In two posts (Part I; Part II), Volokh argues that corporations, like any nonprofit or political advocacy group, are composed of people that wisely pool their resources in order to advance the most powerful message possible.  To strip corporations of these rights, he asserts, “will comparatively empower nonprofit corporations” and the government, neither of which would have to contend with corporate-sponsored messages.  Volokh also offers a critique of yesterday’s NYT editorial, in which he asserts that, ironically, the Times published an inherently “political message arguing that business corporations shouldn’t have the constitutional right to publish political messages.”  Volokh points out that if the Court followed the editorial’s position, several previous landmark cases in which the NYT was involved may have been decided very differently.

The Volokh Conspiracy also continues yesterday’s debates over potential legal responses to health care reform.  Randy Barnett believes that the Court will ignore the black-letter Constitution when deciding if the reform is “constitutional” and calls for a return to judicial interpretation of the original document, not the Constitution as “[one thinks it] out to be.”  Orin Kerr quickly posted a critique in which he argues that the pitfall of using a loaded term like “the real Constitution” ignores the possible validity of interpretations differing from Barnett’s.

The WSJ Law Blog addresses the recently coined term “Tenther,” to describe “those leaning on the Constitution’s Tenth Amendment to justify the shooting down of new federal legislation in the age of President Obama.”  Though the modern expansion of the federal government has rendered the Tenth Amendment “close to dead letter in modern jurisprudence,” the author reflects on the possibility of actually striking down federal legislation on Tenth Amendment grounds.  It seems an unlikely route for a judge to take, but as the blog points out, the current conservative-leaning composition of the court at least makes this an intriguing thought experiment in constitutional jurisprudence.

Via NLJ: A potential argument against judicial elections (on which Justice O’Connor has spoken frequently in recent weeks) may be forming in Wisconsin, where Justice Michael Gableman unseated incumbent Louis Butler during their 2008 race for a judgeship on the Wisconsin Supreme Court.  During this contest, Gableman sponsored an advertisement that drew attention to Butler’s victories as a public defender and criminal attorney, essentially painting him as a man who worked to help criminals circumvent the law.  The author writes that as “state judicial elections become nastier, more expensive and more important to special interest groups, complaints regarding alleged misrepresentations are on the rise.”  At issue in the case is whether the advertisement is true, and if so, how their objective truth may change based on a listener’s expected interpretation.  If the Wisconsin court eventually decides for Butler, it would create a split with a recent Washington State decision that disallowed a similar advertisement, making the case ripe for Supreme Court review.

Finally, USA Today reports that the recently-seated Justice Sotomayor will be honored by throwing out the first pitch at the Saturday Red Sox-Yankees game.  A Bronx native and lifelong Yankees fan, Justice Sotomayor was credited as the “judge that saved baseball” when she effectively ordered strike negotiations to resume as a federal trial judge during the 1994-1995 MLB strike.  The author reports that Justice Sotomayor apparently has been practicing her wind-up for weeks; no word yet on whether she’ll make the toss in robes.