Among the 40 student organizations at the Law School, the Federalist Society has put together an active roster of programs to facilitate discussion among students. By bringing in engaging speakers and facilitating panel discussion, this group has sought to discuss current events as they relate to the law.
The Federalist Society is a non-partisan conservative and libertarian organization dedicated to freedom, federalism, and judicial restraint. “We hope through our programming to educate the legal community about how limited constitutional government based on the rule of law can have a positive effect on law and public policy,” said co-president is Sarah DeStefano ’12.
Of its several programs offered in the fall 2011 semester, two events exemplified the range of topics the Federalist Society addressed.
In September, the Federalist Society hosted Professor Nathan Sales, Assistant Professor of Law at George Mason University School of Law, to discuss the PATRIOT ACT ten years later. He presented a different side of the controversial law, arguing that not only has it been very successful in keeping Americans safer, it also does so through relatively modest adjustments in law. The PATRIOT ACT, Professor Sales argued, merely updated the law to reflect changes in technology and gave counterterrorism officials the same authority as the police in criminal investigations.
He focused on three provisions of the Act that have recently been reapproved by Congress: roving wiretaps, access to business records, and the “lone wolf” clause. Each of these tenets streamlined counterterrorism inquiries, explained Professor Sales, while still protecting the privacy and civil liberties of Americans through frequent, compulsory judicial review. The roving wiretap provision, for example, allows investigators to maintain a single warrant on one person who is using multiple phones, but requires regular monitoring by the issuing court.
In the question and answer session that followed, Professor Sales stated that although the Patriot Act has proven effective in monitoring and preventing ongoing plots, he agreed that certain tenets were not useful. One now-repealed provision issued indefinite gag orders, forbidding individuals from even speaking to their lawyers. Professor Sales also commented that the large number of classified projects prevented voters from truly understanding how successful the law has been.
Prior to teaching, Professor Sales served as Senior Counsel in the Office of Legal Policy at the U.S. Department of Justice, where he had a role in drafting the PATRIOT ACT. He also held the position of Deputy Assistant Secretary for Policy Development at the U.S. Department of Homeland Security.
In November, the Federalist Society hosted “Money as $peech,” a panel discussion on campaign finance policies over the past decade, particularly under the Roberts Court. Speakers included Professor Joel Gora, a former attorney for the ACLU and an expert in election law, and Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, a conservative think tank.
Professor Gora began the discussion by outlining key corporate speech and public finance cases that have shaped the current state of campaign finance. The 1976 case Buckley v. Valeo established limits on campaign contributions from corporations and unions that held firmly throughout the rest of the 20th century. Then, in 2000, Professor Gora explained, the McCain-Feingold Act set in motion a change in regulations. Specifically, the law prohibited organizations—whether corporation, union, or non-profit—from mentioning any political candidate by name within 30 days of an election.
Within the next ten years, five cases concerning political funding restrictions would move through the Supreme Court, each time ruling in favor of the claimant. Professor Gora cited examples such as Randall v. Sorrell, which determined Vermont’s low contribution caps to be a violation of the First Amendment, and the “Millionaire’s Amendment,” which limited wealthy political candidates from spending their own money. Finally, in 2010, Citizens United v. Federal Election Commission overturned the McCain-Feingold Act and determined that any laws prohibiting political media funded by independent organizations were unconstitutional. As a result, all expenditures by any corporation promoting a particular political agenda were protected under the First Amendment.
The ruling was controversial across the political spectrum. However, in his follow up to Professor Gora, Von Spakovsky maintained that, “Citizens United is the most misunderstood case in campaign finance.” As a supporter of the decision, he disagreed that the government should prohibit corporations expressing their agenda in a political context that existed before the case. This was problematic, von Spakovsky explained, because while Congress pushed a higher number of bills on divisive topics to attract voters during an election season, an organization such as the Sierra Club or the NRA, could not urge its members to contact their districts’ elected officials to support or oppose a forthcoming bill or law renewal, which he believed was a clear violation of those groups’ free speech.
Von Spakovsky also discredited critics’ fears of millions of dollars generated through Super PACs, explaining that disclosure is still required and strictly enforced. In conclusion, von Spakovsky said that Citizens United simply affirmed the rights of organizations, which are still comprised of individual voters. “Do you want to live in a country where the government can ban anyone,” he asked the audience, “Corporations, unions, anyone—from expressing themselves politically?”