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    11.14.12 In the Political Storm of the 2012 Election, Professor Joel Gora Called Upon to Defend “Super PACs,” Citizens United and the First Amendment
    Joel Gora

    Brooklyn Law School Professor Joel Gora is a highly-regarded expert on campaign finance law matters, working in the field as both an advocate and as a scholar for more than three decades. Prior to joining the faculty, he was a full-time lawyer with the American Civil Liberties Union, where he worked on dozens of United States Supreme Court cases, including Buckley v. Valeo, the Court’s historic 1976 decision on the relationship between campaign finance restrictions and First Amendment rights. Since then, he has devoted much of his scholarship to the intersection of campaign finance law and the First Amendment, continuing to work on behalf of the ACLU on almost every one of the important campaign finance cases to come before the Court, including the controversial decision in Citizens United v. FEC.

    In Citizens United, the Court held that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions. Critics of the decision argue that it allows unlimited corporate spending on campaigns. They are also suspicious of the enormous political influence super PACs appear to give to rich donors in the wake of Citizens United. Gora, however, has been a staunch defender of the decision as an endorsement of First Amendment protections for the political speech of corporations, labor unions, non-profit organizations and the people whose views and interests these entities represent.

    When the decision was first handed down, Gora called the case a “landmark of political freedom,” and predicted that the decision would result in more political speech, a more knowledgeable electorate, and a healthier democracy, writing that “the ultimate essence of the Court’s ruling is that under the First Amendment there are no privileged speakers and no pariah speakers. Where campaign expenditures are concerned, all speakers and groups have equal rights to use their resources to get out their messages by speaking about candidates and politics and government. And the beneficiaries of this expanded and clarified freedom of political speech are all of us who can hear what the voices of different groups and individuals have to say.”

    Given his wide expertise in this area of the law, and his strong support of Citizens United, Gora has been in the media with increasing regularity during the 2012 Presidential Election.

    In June, he was interviewed by the Associated Press about various laws that have restricted campaign fundraising over the last few decades. “These laws are restricting outsiders, whether liberal or left-wing outsiders or conservative and right-wing outsiders,” he said. In July of this year, he commented to CNN: “Yes, there are some pretty rich people who support super PACs because they have some strong ideas. The super PACS are not the evil so many people portray them to be,” he said. “Just because some people can speak more than other people, the solution is not to prevent them from speaking.” Gora said. "It's to help...level up free speech for everybody."

    In October, he served as a Guest Blogger for the Journal of Corporate Political Activity Law, writing an article entitled, “Five Ideas for Campaign Finance Reform.” Following in the spirit of First Amendment response fashioned from his ACLU background, he concluded that New York should consider the following changes to campaign finance laws: “First, contribution limits should be as high as possible, if not eliminated completely, and certainly not reduced. Second, public funding needs to be seriously rethought, be as simple and straightforward as possible, and not be limits-based. Third, disclosure requirements should be as focused and smart as possible. Fourth, likewise, they should be limited to express political advocacy expenditures. Finally, all of this should be guided by the realization that the best election reform provision ever enacted is the First Amendment. The more we follow its letter and spirit, the better off we will be.”

    On October 26, Gora was selected to present a paper entitled, “In Defense of SUPER PACS and of the First Amendment” at the Seton Hall Law Review Symposium, “The Changing Landscape of Election Law.” In this paper he defended SUPER PACS, writing: “Despite the myths and half-truths about Super Pacs, they are playing an important role in amplifying the voices of the people whose viewpoints they represent…There is only one fly in the ointment of all of this unlimited political giving and spending, which is by and large so beneficial for our democracy. …Candidates and parties face the prospect of being outspent by independent individuals and groups who are no longer restrained in terms of what they can raise and spend. That is a potential imbalance in our political and electoral speech system that should concern us. …Maybe we should finish the job that Buckley solved only partially, that Citizens United improved considerably, but that still needs to be studied: namely, develop a system of no limits on political giving and spending to expand the speech that is fostered thereby, smart disclosure of large contributions to candidates to assess improper influence potential, and, even more broadly, serious public funding to raise the playing field for all candidates.”

    Gora will also publish a paper entitled “Free Speech, Fair Elections and Campaign Finance Laws: Can they Co-Exist?” in Howard University’s Wiley A. Branton/Howard Law Journal Symposium issue, “Protest & Polarization: Law & Debate in America 2012.” In this paper, he argues that free speech and fair elections are both attainable. “In fact, you cannot have one without the other,” he writes. “The hyperventilated and doleful predictions about a tsunami of corporate spending overwhelming our democracy have proven an empty prophesy. And even if there has been an overall increase in campaign spending and political speech, fueled by so-called “super pac” activity, that is a good thing, not a bad thing. As the Supreme Court has observed: ‘That the air may at times seem filled with verbal cacophony [is] not a sign of weakness but of strength’.”

    Gora also participated in a panel discussion at a symposium at Cardozo Law School called “Negotiating the Extremes: Impossible Dialogues in the 21st Century,” and will be presenting remarks to a program of the Federal Bar Council’s American Inn of Court, together with Adam Skaggs, ’03, at the United States Courthouse in Manhattan. His scholarship continues to be an essential part of the conversation on campaign finance and the First Amendment.

BLS LawNotes - Spring 2014

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