Austin and the Link between Corporate Spending Rights and Political Support

One of the more provocative propositions in the Austin v. Michigan Chamber of Commerce (494 U.S. 652 (1990)) case holds that corporations are properly barred from making political expenditures disproportionate to the level of their political support. Austin at 659-660 (citing the power of legislatures to address "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas").

This provoked Justice Scalia, one source among others of his exasperation with the majority. He could not see how a corporation was different in this respect from wealthy individual. One was just like the other: each should be able to promote a point of view without regard to its popularity or prevalence. Id. at 685 (Scalia, J., dissenting). Contrary to the Austin Court’s denial, Scalia retorted, it was decreeing that speech be equalized.

(8/21/09) Read More

**Justice Kennedy’s Mistake in Austin: The Contribution/Expenditure Distinction in the Realm of Source Restrictions**

With all eyes on Justice Kennedy, Court watchers, campaign finance lawyers, members of the political community and people with strange hobbies anticipate the Court's reconsideration of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). If Austin dies, corporations may come alive in federal elections as independent, free spenders. Justice Kennedy objected to Austin’s blockage of independent corporate political speech. Dissenting vigorously, he was moved to protest by the belief that the Court had departed violently from precedent. His brief against the decision is made up of two related parts: that the case disregarded settled free speech rights enjoyed by corporations, and to the extent that corporate speech in elections is restricted, the limits apply to contributions to candidates and not to expenditures made independently of them.

(8/7/09) Read More

The Democratic National Committee on Citizens United

It's brief can be found here.

(8/3/09) Read More

Thoughts on the FEC and Its Troubles

It is impossible to believe that the arguments over FEC and its performance must remain at the present and very low level. Nothing constructive can come of this, a shouting match in which one side poses as the defender of constitutional values and the other holds aloft the banner of law enforcement. Observers tend to fall out along the same battle lines. Surely, arguments this simplistic must each be in part, and in serious measure, untrue. And even if there is any truth in the standard portrayals—if Democrats are too causal in the treatment of concerns with due process and limits on agency action and the Republicans take enforcement demands too lightly—each Commissioner must recognize that managing this conflict between enforcement objectives and constitutional limits is a large part of their responsibilities and they must keep trying to do so. Recognizing this, each would have to accept that to really try—to have this work—they need to guard against letting their guard down and permitting their jurisprudential or ideological preferences to pull them too far in any one direction.

(6/26/09) Read More

**Kennedy’s Problem in Caperton v. Massey and the Unfortunate Solution He Chose**

Not in all quarters, but in many, the Court’s decision in Caperton v. Massey has been well received. The facts of the case are arresting, the stuff of a Grisham novel, and added together, they make for a plausible plot about a ruthless, rich businessman spending heavily in a judicial election to buy a vote on a court. The Court, in an opinion written by Justice Kennedy, concludes that the case is “rare” and “exceptional," and that Due Process in these extraordinary circumstances compels recusal.

So much for the result, which many—especially those depressed by the spending trends in judicial elections—find elating. What of the opinion?

(6/12/09) Read More