Supreme Court May Overturn Campaign Finance Laws
Tomorrow, the Supreme Court is hearing a case that could overturn two recent precedents allowing the restriction of political speech by corporations for the purpose of curbing the appearance of undue influence. There’s an excellent chance they will do so.
That raises ageless questions about the role of stare decisis — the court’s custom of standing by its previous decisions. But it also raises new ones about the boldness of a court that has moved to the right with the addition of Roberts and Justice Samuel A. Alito Jr. “Everyone knows this is a case about the chief and Justice Alito,” said Richard J. Lazarus, co-director of the Supreme Court Institute at the Georgetown University Law Center. “And the real question here is whether the chief is ready to pull the trigger” on declaring the restrictions unconstitutional.
Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.
There are two precedents at stake in Wednesday’s rehearing of Citizens United v. Federal Election Commission. One is the court’s 1990 decision in Austin v. Michigan Chamber of Commerce, in which it upheld a state law that said corporations could be barred from spending their profits to urge a candidate’s election or defeat.
The second is part of the 2003 decision upholding Congress’s Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold campaign finance law. The court ruled 5 to 4 that Congress may curtail corporate spending on advertising that mentions a candidate shortly before an election, even if it does not explicitly support or oppose that person.
Three current justices — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — have said Austin should be overturned, and all three said in McConnell v. FEC that McCain-Feingold violates the Constitution’s guarantee of free speech. Those who favor the restrictions said a recognition that government may treat corporations and individuals differently when it comes to political spending dates back more than 100 years.
I’m agnostic on the question of corporate personhood, both seeing firms as simply individuals bound together by contract and yet not necessarily entitled to every protection owed a citizen. On the specific matter of campaign finance law, however, it strikes me as obviously unconstitutional to restrict political speech.