Monday, June 29, 2009

Rehearing the ban on corporate donations to political campaigns

While everyone was waiting for the Ricci case, the Supreme Court delivered a hint of a potential stunner. They asked for the case Citizens United v. FEC to be reheard concerning whether or not the Court should overturn its previous rulings limiting corporate spending on campaign speech. This was the case concerning Hillary: The Movie and whether advertising for the DVD release of this anti-Hillary pic violated campaign finance laws. During the oral hearing for the case, the government lawyer went so far as to argue that campaign laws could lead to banning books about an individual candidate. That seemed to be a wake-up call for the justices about how far the logic of limiting speech for or against a candidate can go.

So the fact that the Court has asked for this case to be reheard rather than deciding it on narrow grounds has set off a frisson of excitement among those who follow election law.

Rick Hasen of Electionlaw blog and a strong advocate for limiting campaign spending and corporate speech writes is quite upset and writes in Slate,
If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama's $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.
What about corporations that supported Obama in the last election? Check out the list from Opensecrets of the top donors to Obama's campaign.
University of California $1,385,675
Goldman Sachs $980,945
Microsoft Corp $806,299
Harvard University $793,460
Google Inc $790,564
Citigroup Inc $657,268
JPMorgan Chase & Co $650,758
Stanford University $580,904
Sidley Austin LLP $574,938
Time Warner $547,951
National Amusements Inc $541,251
WilmerHale $524,292
UBS AG $522,019
IBM Corp $518,557
Skadden, Arps et al $510,274
Columbia University $503,566
Morgan Stanley $490,873
US Government $479,956
General Electric $479,454
Latham & Watkins $467,311
According to Opensecrets their totals come from
From the organization's PAC, its individual members or employees or owners, and those individuals' immediate families
You can check out the list of top donors to John McCain's campaign and see that those organizations or their employees that gave to both, gave much more to Obama. For example, Citigroup which gave $657,268 to Obama, gave just $320,251 to McCain. McCain got $230,095 from Goldman Sachs, while Obama got $980,945. So it's not clear at all that corporate money would go overwhelmingly for a Republican candidate. And businesses are often very careful to divide their money among candidates while favoring the incumbent party. So if the Democrats still control Congress expect them to receive generous donations from corporate donors.

Rick Hasen is quite worried and is busy reading the tea leaves to see a strong chance of the Court overturning the bans on corporate giving.
If Roberts and Justice Alito were ready to overrule Austin, why not do it now? I can think of two possible reasons. They may not have wanted to take the plunge on Justice Souter's last day on the court. He has been an ardent defender of these laws. Perhaps more to the point, Justice Alito, in two campaign-finance cases, has said that he would not consider revisiting old campaign-finance precedent until the issue was squarely before the court and briefed. In other words, Alito wants a full airing of the issues before taking such a momentous step.

Now he will get that. And then what? If after reargument in September, corporate limits fall—and limits on the money labor unions can spend on campaigns, with them—we may well look back on the 2008 election as a quaint time when the amounts spent on elections were relatively modest. Expect the floodgates to open, and the money to flow freely, as early as next year.
As if the floodgates weren't already wide open with all the avenues for independent expenditures now.

Reid Cox at the Center for Competitive Politics comes at this from the other side of the spectrum than Rick Hasen. He also foresees the possibility that the Court could reverse its prior rulings and, in so doing, clarifying the confusion surrounding some of the Court's rulings banning campaign speech.
The re-argument order -- explicitly on the issues of whether the Supreme Court should overrule Austin, the part of McConnell that facially upheld McCain-Feingold's electioneering communications ban, or both -- puts the entire campaign finance community on notice that the Citizens United decision to come likely will be big and bold, also likely in an attempt by at least five justices to straighten out what has been a confused area of the High Court's jurisprudence.
Read the rest of his post for the details. Here is the statement from CCP's statement on the news of the rehearing.
"For two decades Austin has been the odd man out in the Court's campaign finance jurisprudence, creating a great deal of mischief with its sloppy holding that appeared to equate less than perfect equality in spending with political corruption," said Bradley A. Smith, the Chairman of the Center for Competitive Politics and a former FEC Chairman. "It's past time Austin got the boot, and we are convinced that when the case is reargued this fall, that will become apparent to the Court."

"Overruling Austin would strengthen First Amendment rights and allow Americans to more fully participate in our political system," said Stephen M. Hoersting, CCP's Vice President. "Independent speech by any speaker cannot corrupt our democracy, it enriches it."
Personally, I will be very excited about this rehearing. Not only would I like them to strike down the ban, but it sounds like this will happen just about the time that I cover campaign finance reform in my AP US Government class. I'd been feeling bad for the kids taking the class this year since it's the one year out of a four-year cycle when we don't have an election or primaries going on for the students to follow as we talk about elections. Now, at least there will be a major current events story to coordinate with my class.

If Hillary: the Movie does serve as the vehicle for striking down the corporate ban, it will end up having much more of an impact than it ever did have as a vehicle for anti-Hillary vitriol.