Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) had just one reaction to the colorful testimony Wednesday on Capitol Hill from Jones Day partner Michael Carvin: "We should probably give you the award for saying the highest level of sarcasm we've heard before this committee in a long time."
In Carvin's defense, the hearing was a set up for political posturing. Titled "The Citizens United Court and the Continuing Importance of the Voting Rights Act," Leahy and Ranking Member Sen. Chuck Grassley (R-Iowa) used opening statements to tout their party's positions on the issues.
Leahy, for example, delivered one of his oft-repeated lines regarding the Supreme Court decision in Citizens United v. Federal Elections Commission regarding campaign contributions: "Corporations are not individuals in that regard, otherwise, having elected General Eisenhower as president we maybe will be electing General Motors as president, it makes that much sense."
When it was his turn, Carvin, one of the lawyers who argued before the Florida Supreme Court on behalf of George W. Bush in the 2000 election Florida recount controversy, delivered a rapid-fire commentary on such criticism of the Citizens United decision.
Carvin started out by telling the committee that he found the controversy about the decision "quite puzzling" because the decision simply reaffirmed a core principle of the First Amendment, that Congress can't ban political speech. And "obviously," banning spending on speech is the same thing as banning speech, he said.
"Telling the Washington Post that they can't spend money to endorse Barack Obama is no different than telling the Washington Post they can't endorse Barack Obama," Carvin said. Later, he added, "Surely no one thinks you could pass a law prohibiting MSNBC from endorsing Barack Obama, even though it used to be owned by General Electric and it's still a corporation."
So everyone thinks some corporations have free speech rights, Carvin said — but someone needs to explain why other corporations have become "the red-headed stepchild of the Constitution that is unable to speak."
Carvin said the argument generally goes that corporations have too much money, and too much money gives them too much speech. But he said the notion that corporations are drowning out political speech is "completely unsubstantiated rhetorical nonsense." He referenced testimony about the Supreme Court decision in June to strike down Montana's efforts to limit campaign contributions, a decision bound by the Citizens United decision from 2010.
Later in the hearing, Leahy responded that he was worried that new barriers to voting along with a new flood of campaign contributions — whether from corporations or unions or others — will affect the ability of individual Americans to participate in the political process.
"I'd worry a lot less if we knew exactly who was spending the money," Leahy said.