The Supreme Court
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The Supreme Court's intervention in election law has been active, complex, and, in many material respects, indecipherable. The Supreme Court cannot decide what to do, if anything, about partisan gerrymandering, and its decisions on campaign finance—such as McConnell v. FEC—have also left a host of unanswered questions about the reach of Congressional regulation of political fundraising and spending. This space is concerned with the shape or absence of Court doctrine. With the vacancy created by the retirement of Justice O'Connor and still others very possible in the near future, major changes in the constitutional law affecting the conduct of politics may be expected.

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.

 

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.

 

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?

"Something Distinctive About the Speech"

   In the commentary following the argument in Citizens United, it was not entirely unclear how the exchanges with the Justices about "book banning" could color the outcome or determine it. Contrary to the Wall Street Journal's triumphant claims to the contrary, McCain Feingold does not require the banning of books. It is not the consequence of the 2002 law--but rather that of a law passed over a century ago-- that a corporate or union-paid book might be illegal.

   So what then does this have to say about McCain Feingold, which specifically tailors its "electioneering communication" provision to broadcast, cable or satellite activity?

The Supreme Court "Throws The Book" at the Government, In Citizens United

   The argument in Citizens United today may barely have grazed the Justices' thinking, changing no minds. Who knows? This is true, most likely, of most arguments.  But if the Court does eventually strike hard at the statute, with this case as an excuse, the argument will be remembered.  For it was clear that the government's position, tested for its limits or their absence, caused discomfort--even for the likes of Stephen Breyer.

Also...

In Defense and Criticism, All at Once, of Justice Ginsburg  3/12/09

Not So “Nice, Clear and True”  3/4/09

Judicial Campaign Finance and the Contribution/Expenditure Distinction in Caperton v. Massey  2/11/09

Nate Persily on the Roberts Court and Election Law  2/2/09

Citizens United Before the Supreme Court, On Disclosure  1/22/09

Roberts “On the Spot”, More than Once  1/9/09

Something To Be Said for Davis?  7/3/08

Justice Alito for the Court, in Davis  6/30/08

Justice Stevens in Dissent, in Davis  6/27/08

Davis v. FEC—First Thoughts on the Demise of the Millionaire’s Amendment  6/26/08