Court Monitor

Court's Biggest Ruling To Come

The Supreme Court term that concluded in June rendered several major decisions, but its biggest ruling of all is still to come. The Court deferred a dispute over campaign finance restrictions until September.

A candidate can seldom win if he is outspent by the other side. This is particularly true of conservative candidates who must also overcome the liberal media, with all its reporting bias and one-sided endorsements.

Yet campaign finance laws restrict and regulate how much money can be spent by candidates. Perhaps even worse, these laws prohibit independent expenditures by companies unrelated to a campaign. Most Americans would be surprised to learn that their organizations cannot spend their own money to say what they want about a political candidate, at least not within 60 days of a general election or within 30 days of a primary. Free speech is a constitutional right, but it has not yet protected what organizations say with their own money about political candidates.

In 1990, a ruling by the United States Supreme Court upheld a complete ban on independent expenditures by corporations, even small nonprofit ones, in Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990). Corporations are only allowed to spend money on campaigns through segregated political action committees (PACs). Based on this ruling and numerous federal and state laws enacted before and afterward, corporations are prohibited from spending money from their general treasury with respect to political campaigns.

There were two strong dissents from the 1990 decision, by Justices Antonin Scalia and Anthony Kennedy. Justice Scalia began his dissent with this: "Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: _____." Justice Scalia's dismay at the limitation on free speech was unmistakable.

Last year a 90-minute documentary film entitled, "Hillary: The Movie," ran up against a federal restriction on campaign-related speech. This movie, critical of Hillary Clinton, was first released in January 2008 when Clinton was running for president, and it sought to air within 30 days of a primary election. It constituted a corporate expenditure that would ostensibly be prohibited by federal campaign finance law, and a lawsuit ensued. Citizens United v. FEC, No. 08-205.

A decision on whether this movie is free speech protected by the Constitution was expected before the Court adjourned in June. But rather than decide this case as expected, the Court ordered new briefing by the parties and set a special re-argument date in September to address whether the Court should overrule the Austin case. Six justices have been replaced on the Supreme Court since Austin was decided in 1990, and now it appears that there is a 5-4 conservative majority to end the ban on independent corporate expenditures relating to elections.

This could bring a massive sea change in American elections, ending the media's stranglehold on the process. Once corporations have the same ability to speak out about elections as newspapers and television stations currently do, the playing field will no longer be tilted so heavily in favor of the media's liberal point of view. Imagine how different the voting on the "cap and trade" legislation would be if the energy industry, which would be hurt the most by the falsehoods, could spend its money directly on elections.

If the Court strikes down limits on independent corporate expenditures, then American politics becomes a brand new ball game - just in time for the 2010 congressional elections.


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