– From an editorial in the New York Times, July 4, 2009
If this editorial in the Times has it right, American democracy could be in for a rough ride in the coming years.
A largely-overlooked order from the United States Supreme Court last week suggests the nation’s highest court wants to revisit long-standing restrictions on campaign contributions from corporations.
On the last day of its current session, the Supreme Court surprised observers by declining to return a ruling in the case of Citizens United v. Federal Election Commission, instead asking lawyers on both sides of the case to return in September for an unusual pre-session hearing on the validity of various electoral laws pertaining to the case.
Citizens United vs. FEC revolves around a political film the conservative activist group Citizens United made about Hillary Clinton in 2008, while the then-senator from New York was running for president. The FEC had charged Citizens United with breaking campaign finance laws by distributing the film during a certain period before the primary elections.
But instead of ruling on the case and the relevant law (the McCain-Feingold law, which set some restrictions on corporate political spending), the court instead asked the lawyers in the case to present briefs on a relevant case from 20 years ago: Austin v. Michigan Chamber of Commerce.
This is important because that was the Supreme Court case which ruled that restrictions on campaign contributions by corporations, unions and other organizations were legal despite their infringement on First Amendment rights.
Simply put, if the Supreme Court decides to overturn Austin v. Michigan Chamber of Commerce, it will mean that any restrictions on campaign spending by corporations will be invalid because they violate those corporations’ right to freedom of speech.
“The court, at the very least, is considering reversing more than 100 years of campaign finance precedent prohibiting corporate spending,” Paul Ryan, associate legal counsel at the Campaign Legal Center, told The Hill. “It would be a pretty large step, and remarkable step, for the court to overturn a century of public policy.”
Judicial observers fear overturning the 1989 ruling would mark the beginning of a wild, unbridled era where elections are won by the highest bidder.
“Banks like Citigroup, investment firms like Merrill Lynch, insurance companies like AIG and corporations like General Motors and Chrysler would be free to spend hundreds of millions of dollars of their corporation’s wealth” on elections, Fred Wertheimer, president of advocacy group Democracy 21, told the Washington Post.
According to a report at the First Amendment Center, restrictions on corporate spending go back to the Tillman Act of 1907, with various additional laws being put into place over the past century. The entire tradition of restricting political spending could be out the window with a Supreme Court reversal on corporations’ First Amendment rights.
In its editorial, the New York Times writes that even the “feverish” pace with which the Supreme Court wants to address the issue — it wants to rule on the issue in September, when the court hasn’t even reconvened for its new session — is “disturbing.”
The Times writes:
The most troubling part of the court’s action is the brave new world of politics it could usher in. Auto companies that receive multibillion-dollar bailouts could spend vast sums to re-elect the same officials who hand them the money. If Exxon Mobil or Wal-Mart wants something from a member of Congress, it could threaten to spend as much as it takes to defeat him or her in the next election.
It is a nightmare vision, but based on how the justices have come down in past cases, there may well be five votes for it to prevail.
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