Breaking: Supreme Court strikes down some McCain-Feingold provisions; Update: Opinion added
posted at 10:35 am on January 21, 2010 by Ed Morrissey
In a 5-4 ruling, the Supreme Court abruptly called a halt to encroachments on political speech in the name of campaign finance reform. It ruled that spending limits imposed on corporations and unions infringed on constitutional rights, ending decades of attempts to limit advertising on their behalf. It also overturned McCain-Feingold provisions barring some kinds of advertising in the weeks before an election :
The Supreme Court has ruled that corporations may spend freely to support or oppose candidates for president and Congress, easing decades-old limits on their participation in federal campaigns.
By a 5-4 vote, the court on Thursday overturned a 20-year-old ruling that said corporations can be prohibited from using money from their general treasuries to pay for campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states.
The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.
No word yet on language from the opinion, but the ruling shows both an impatience with a utilitarian argument for violating the First Amendment and the fault lines on the current court. I doubt anyone will fail to guess the concurs and the dissents in the 5-4 vote. Anthony Kennedy almost undoubtedly wound up as the swing vote.
In the first challenges to the BCRA (McCain-Feingold), the earlier court appeared to accept the notion that one has to break a few First Amendment eggs to get a clean-elections omelette. This court has apparently decided that Congress should amend the First Amendment if it has grown tired of it, rather than pass laws that contradict it. The fact that only five of the nine justices could reach that rather obvious conclusion shows how much judicial activism and Congressional overreach have in common — especially the sense that they can manipulate clear boundaries of power for whatever end they seek.
Will this open the floodgates to corporate and union money in elections? Well, it never really left. The restrictions in the BCRA and other campaign-finance “reforms” just forced the money into less-transparent channels, creating mini-industries of money laundering in politics. This ruling will just allow the money to be seen for what it is, rather than hiding behind PR-spin PAC names and shadowy contribution trails.
The best campaign finance reform is still transparency. If burning a flag in the street is free speech, then so are political contributions, especially when made in the open. If the reformers in Congress want to clean up elections, then force immediate reporting on the Internet of all contributions to all presidential, Senate, and Congressional races, and full weekly financial reports on expenditures. That will do more than all of the speech-restricting, unconstitutional efforts made since Watergate, and make the entire system a lot more honest.
Update: The opinion has been published here. No great shock to see Justices Roberts, Scalia, Thomas, Alito, and Kennedy on one side with Justices Stevens, Ginsburg, Breyer, and Sotomayor on the other. Here’s what Stevens sees as the “real issue”:
The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 daysbefore the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether CitizensUnited had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided.
This is, not to be too blunt, patently absurd. Free political speech is not free if the government can dictate when and where you exercise it. It’s true that CU could have run the movie earlier than 30 days before the election. They felt — not without reason — that their speech would be more effective using the same venues within 30 days of the election. Assuming they break no other laws, what gives government the right to dictate when on the calendar they can exercise free political speech? Apparently, being “rich” is a Constitutional exception through which the government can infringe on rights.
I’ll finish with Thomas’ final words on Citizens United v FEC:
I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruinedcareers, damaged or defaced property, or pre-emptive andthreatening warning letters as the price for engaging in“core political speech, the ‘primary object of First Amendment protection.’”
Update II: In case you need to come up to speed on Citizens United v FEC, this Cato video does a great job of explaining the case:
Ilya Shapiro reacts at Cato:
Today the Supreme Court struck a major blow for free speech by correctly holding that government cannot try to “level the political playing field” by banning corporations from making independent campaign expenditures on films, books, or even campaign signs.
As Justice Kennedy said in announcing the opinion, if the First Amendment has any force, it prohibits jailing citizens for engaging in political speech.
Update III: An important caveat from a lawyer who reads Hot Air:
Ed: Read your post on CU case after reading the syllabus and glancing at the dissents. Two things not apparent in your post: (1) the Court only struck down limits on independent expenditures, not on contributions (a point still missing from most of the commentary). (2) Thomas, citing threats on supporters of Prop 8 [Calif. gay marriage ban] and a right to “anonymous speech,” dissented on the grounds that disclosure requirements are also unconstitutional. The Majority (all 8 others) upheld the disclosure requirements. Therefore, quoting Thomas’s dissent after making your point that the only thing required is full disclosure is, well, inconsistent. BTW I wholeheartedly agree with you, not J. Thomas, on transparency/disclosure. The Prop 8 problem is the threats, not the disclosure of donor’s names.
I’m a lawyer from Los Angeles.
Duly noted; I had not picked up on that distinction.