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Roberts Court rulings on campaign finance reveal shifting makeup, forceful role
For instance, much has been made of the ruling that corporations have the same right to political speech as individuals. But the court had made a similar ruling regarding a corporation's ability to spend money to influence a referendum.
Congress is right to be concerned about the appearances of corruption orquid pro quo corruption that could accompany expenditures by corporations and unions, Kennedy wrote. "The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule."
Kennedy said there were safeguards in place for worries about unfettered political activity by corporations and unions: disclosure.
"The court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech," he wrote.
And he said it was easier now than at the time McCain-Feingold was passed.
"With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable," Kennedy continued, saying such "transparency" allows voters to evaluate the speech and the messenger.
But real life has revealed problems with that approach. Critics of the ruling said Kennedy and the majority did not address rulings by the FEC and IRS, which govern the myriad political groups and nonprofit organizations active in elections, that they need not always disclose their donors.
Fred Wertheimer, the longtime campaign finance watchdog who is now president of Democracy 21, estimates that groups will spend as much as $200 million during the midterm elections without disclosing the source of the money.
And after the ruling, with unanimous opposition from Republicans, including McCain, the Senate did not toughen disclosure requirements .
To McCain and Feingold, the court's actions on campaign finance reflect both naivete and judicial activism.
McCain was livid after oral arguments in the Citizens United case, when Scalia said he did not think he was being "excessively cynical" to think Congress incapable of passing campaign finance legislation that did not simply protect incumbents.
"Not only was Justice Scalia's statement excessively cynical," McCain said in a speech on the Senate floor, "it showed his unfortunate lack of understanding of the facts and history of campaign reform."