First Amendment—Campaign Finance

Ever since the Supreme Court approved most of the provisions in the Bipartisan Campaign Reform Act of 2002 (BCRA, also known as McCain-Feingold) in McConnell v. Federal Election Commission (2003), court watchers have been waiting for the other shoe, or in this case shoes, to drop. McConnell was a "facial" challenge to BCRA, that is, its opponents claimed that if the law went into effect certain bad and/or unconstitutional things would happen. The Court does not like facial challenges, and normally will sustain a law unless there is clear evidence that some provision is overtly unconstitutional.  Commentators, however, warned that the Court would not be so sympathetic to BCRA when it began to hear "as applied" challenges, that is, when people could point to how the law actually operated.  That happened almost immediately, and this past term saw the Court approve the most ambitious attack not only on BCRA, but on the regulation of campaign finance itself.

The case, Citizens United v. Federal Election Commission, grew out of a conservative group's film attacking Hillary Clinton. David Bossie, a veteran Republican campaign operative, saw the success of Michael Moore's successful attack on George Bush, "Fahrenheit 9/11." He decided that his group, Citizens United, could make a similar film attacking Hillary Clinton, then seeking the Democratic presidential nomination.  It made "Hillary: The Movie," but the FEC said it was a political advertisement and restricted Citizens United's ability to show or advertise the film during the primary season. Bossie had anticipated—indeed hoped—this would happen, since it would serve as a perfect vehicle to attack BCRA and its limits on airing political spots.

What he and his allies did not expect is that during oral argument in March 2009, the justices would be flabbergasted when Deputy Solicitor General Malcolm Stewart under duress acknowledged that a corporation-sponsored book could be banned under federal law if it contained text for or against a candidate's election. Theodore Olson, who argued the case for Citizens United, believed that was actually the turning point, when the justices realized just how sweeping BCRA could be. The Court ordered re-argument of the case in the fall, and also asked both sides to brief the Court on whether it should uphold or overturn Austin v. Michigan Chamber of Commerce (1990), which sustained a federal ban on contributions for political purposes out of corporate treasuries.

After re-argument in the fall, a 5-4 majority of the Court voted to void not only § 203 of BCRA, but also to overturn Austin, in effect reversing more than a century of congressional prohibition against corporate contributions to political campaigns. The decision about § 203 had been expected, since the provision, prohibiting "electioneering communications" in the period leading up to a primary or general election, clearly had First Amendment problems.  Such communications are speech, and the government could not show any compelling interest why this form of political speech should be restricted.

What came as a surprise is the reversal of Austin, since it had not been attacked in the original filing by Citizens United.  Critics including President Obama charged the Court with reaching out to decide an issue that was not properly before it, and there is more than a touch of defensivesness in the majority and concurring opinions.  Justice Anthony Kennedy, who wrote for the majority, had trouble finding precedents that would support his conclusion that corporations, like individuals, enjoy First Amendment rights, and that restrictions on their spending is unconstitutional.  Nearly all of the cases he cited actually pointed the other way, and he was not actually citing the majority holdings but the dissents in the cases. Chief Justice Roberts wrote a concurrence in which he tried to defend the Court's overturning of Austin, saying that when there is a bad ruling it is the Court's obligation to reverse itself.  He failed to mention that no one had thought Austin was a bad ruling for nearly two decades, and that the case had not come up for review in the normal course of events, but that the majority had reached out to overrule it.

Justice Scalia pulled out all of his Originalist arguments to try to show that the Framers actually considered corporations to be the same as natural persons when it came to rights, a position that historians of the period found laughable.  There were practically no private corporations at the time; the corporate form was highly restricted and used for limited purposes; and the modern corporate form did not emerge until the middle of the nineteenth century.  Only in 1897 did the Court rule that corporations were a form of person enjoying economic privileges under the Fourteenth Amendment.

Justice Stevens, in a lengthy dissent, shredded the arguments of Kennedy, Roberts, and Scalia, and most people believe he got it right when he claimed that there was no constitutional reason to overturn Austin, only that five members of the Court did not like it.  Certainly it is the most activist display of the Roberts Court majority, and one of the most activist decisions by the Court in years.  It negates not only a federal law, but brings into disarray dozens of state laws as well.

As some commentators noted, the decision reflects a significant power struggle.  For the first time since 1937 an increasingly conservative judiciary is confronted by a progressive and activist president and Congress, and the conservatives on the Court, much like those who opposed the New Deal in the 1930s, seemed willing to take on the other branches in a fight over who determines public policy.

Courts are traditionally the most conservative branch of government, but since 1980 the presidency and the Congress have been conservative or at the most moderate.  Barack Obama is certainly the most liberal president since Lyndon Johnson, and while Congress often appears crippled by partisanship, it has passed not only Obama's health reform proposals but also a major bill regulating the financial markets.

It is not just that the Court is conservative; the Roberts Court—or at least the majority—are very conservative, and reflect legal theories that have been germinating in conservative think tanks for more than three decades. This has shown itself in the Court's opposition to expanding the reach of the Equal Protection Clause and the decisions on gun control. It stepped back from the brink last Term after seeming to threaten the reauthorization of the 1965 Voting Rights Act, a law that both John Roberts and Samuel Alito made clear they disdained.

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