Will the Supreme Court Limit the Reach of Campaign Finance Reform?

Damon W. Root | September 9, 2009

It looks like the answer might be yes. At SCOTUSblog, Lyle Denniston has a quick analysis of this morning's oral arguments in the campaign finance case Citizens United v. FEC:

Three Justices—Anthony M. Kennedy, Antonin Scalia and Clarence Thomas—have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.

That lineup has always put the focus, as the Court volunteered to take on new constitutional questions in the Citizens United case, on the Chief Justice and Justice Alito.  While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections.  None of those arguments seemed to appeal to either Roberts or Alito.

Rest here. Jacob Sullum's reporting on Citizens United is here and here. My take on the case is here.

Comments

|9.9.09 @ 12:32PM|#

I want to live in a country where:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Tomcat1066|9.9.09 @ 12:33PM|#

Let us hope and pray or whatever that SCOTUS does the right thing here. Unfortunately, it won't be as broad as I'd like...kind of like with Heller.

|9.9.09 @ 12:36PM|#

So, if they find for Citizens in this case, does that make all of McCain-Feingold null, or just parts pertaining to corporations? Shouldn't they be striking down an entire law of part of the law is unconstitutional? Maybe it would get Congress to write bite sized laws for each thing and they could be argued on their merits alone.

Yeah, I know, put down the pipe.

|9.9.09 @ 12:43PM|#

The Solicitor General has pretty much admitted the case is lost. She is frantically trying to preserve McCain Feingold by making a non-profit corporate exemption. I think she's failing at it.

|9.9.09 @ 12:47PM|#

Of course, the real reason that corporations shouldn't spend money on campaigns (or charities, for that matter) is their fiduciary duty to their shareholders. Their duty is to maximize the return to their shareholders, they have no authority to spend money on anything else, ergo, expenditures on campaigns (or charities) are ultra vires.

They should return that money to their shareholders as dividends, and let their shareholders donate to whatever they want.

|9.9.09 @ 12:48PM|#

It would be ironic if the gutting of the First Amendment by Obama's general election opponent (you know, McCain-Feingold) was upheld by the swing vote provided by Obama's appointee.

This case points out why neither of the major party candidates for prez last year deserved any libertarian votes.

|9.9.09 @ 12:55PM|#

Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.

Shouldn't that read, "Kennedy and Scalia..."?

|9.9.09 @ 1:00PM|#

RC, maybe this will result in shareholders being more diligent in what they demand of their boards. Two birds with one stone?

|9.9.09 @ 1:05PM|#

This is the rare case where the baby should be thrown out with the bathwater. Overturn that piece of bipartisan shit legislation in its entirety.

|9.9.09 @ 1:07PM|#

This case points out why neither of the major party candidates for prez last year deserved any libertarian votes.

QFT.

|9.9.09 @ 1:08PM|#

RC, unfortunately in these times corporations have a huge fiducary interest in who wields power in Washington. In fact, I'd contend the last ten months has been the biggest reason corporations need the right to engage in politics. You are familiar with Government Motors, are you not?

|9.9.09 @ 1:10PM|#

RC, you could say the same thing about lobbying expenses. The board's duty is to determine what the best way to maximize return for investors is. Getting the right person elected senator is not incompatible with that.

|9.9.09 @ 1:12PM|#

GM isn't really a good example. Ford would be a better one.

|9.9.09 @ 1:46PM|#

Unfortunately, I think the observation that the government's vast expansion has rendered politics part of the business of America probably means that lobbying, campaign contributions, etc., aren't ultra vires any more.

So be it.

Joshua Holmes|9.9.09 @ 1:57PM|#

Ultra vires is on life support, due to general incorporation. This is all to the good: let shareholders fight it out at shareholders' meetings instead of in court.

|9.9.09 @ 7:29PM|#

One thing that drives me up the wall is the congress passing statutes that they know goddamned well are unconstitutional, and just blithely waiting for the SCOTUS to get around to ruling on them in a couple of years.

When the court finds a law unconstitutional, then it should be a major crisis. It means that either the legislature or the court has FUCKED UP, and it should occasion a serious public debate on the matter.

-jcr