Will the High Court Resist Activism on Campaign Finance Law?

By Ruth Marcus
Sunday, August 2, 2009

Alabama Sen. Jeff Sessions, the top Republican on the Senate Judiciary Committee, said last week that he would vote against confirming Sonia Sotomayor to the Supreme Court because he doubts she will "resist the siren call of judicial activism."

If that's what he's worried about, there are some sitting justices whom Sessions might want to lash to the mast -- quickly. Except these justices tend to be in Sessions's ideological camp.

Next month, even before the traditional first Monday in October opening and almost certainly with Sotomayor on the bench, the court will hear a campaign finance case that illustrates the activist itch among its conservatives.

Rehear it, actually. In a surprise move on the last day of the term, the court announced that it would hold a new argument in the case -- and that it would consider overruling two precedents upholding limits on corporate money in the political process.

Talk about judicial activism.

One case, from 1990, Austin v. Michigan Chamber of Commerce, held that corporations could be barred from spending their own funds -- as opposed to using a political action committee to which employees contribute -- to urge a candidate's election or defeat.

The second, part of the 2003 decision upholding the McCain-Feingold campaign finance law, said that the prohibition on corporate spending could be extended to "electioneering communications" -- advertising that mentions a candidate shortly before an election even if it doesn't explicitly support or oppose that person.

Three justices -- Antonin Scalia, Anthony Kennedy and Clarence Thomas -- have called for Austin to be overturned. Chief Justice John Roberts and Justice Samuel Alito, no fans of campaign finance regulations, seem tempted to go along.

Overruling Austin would be a disaster, and curtailing McCain-Feingold only slightly less so. The floodgates would be opened for corporations, and labor unions, to run ads supporting or attacking candidates -- not only in federal campaigns, but in the 22 states that now prohibit such spending. The only restriction would be that they couldn't give to candidates directly.

Imagine the 2010 election in a post-Austin world, with drug companies going after members of Congress who vote against their interests, or banks targeting lawmakers who backed tighter regulation. It's not as if these industries lack political power now, but consider what kind of legislation would result if lawmakers had to fear that an industry they defied could spend an unlimited amount to defeat them at the next election.

The pending dispute is a hard case, but it doesn't require the justices to make bad law.

It involves "Hillary: The Movie," produced by a conservative group, Citizens United, during the 2008 presidential election campaign. Citizens United wanted to pay a cable channel to make the movie available as a video on demand. It went to court, seeking an order that it be permitted to do so.

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