“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” For around 180 years the First Amendment to the Constitution protected political speech, the exact speech for which it was enacted. Then Richard Nixon became president and through ever increasing campaign finance regulations the First Amendment protections on speech have been whittled away.
If you read Blue Mass Group with any regularity you would have seen a diary by David Kravitz a lawyer with the Boston law firm Hanify and King. The diary written by Kravitz was about the rearguing of the Citizens United case regarding their Hillary Clinton movie.
As I noted earlier, there was very big news at the Supreme Court today — and it wasn’t the Ricci case. The biggest news was the non-decision in Citizens United v. FEC, in which the Court ordered reargument and briefing on whether two important campaign finance cases should be overruled. SCOTUSblog describes the issues presented as follows:
In the Austin [v. Michigan Chamber of Commerce] decision, the Court upheld the power of government to bar corporations from using funds from their own treasuries to support or oppose candidates for elected state offices. In the part of McConnell [v. FEC] that the Court will reconsider, the Justices upheld a provision of the 2002 campaign finance law that bars corporations and labor unions from using their treasury funds to pay for radio or TV ads, during election season, that refer to a candidate for Congress or the Presidency, and appear to urge a vote for or against such a candidate.
That reargument took place this week. George Will in a column out today has a great take on the proceedings.
Last March, during the Supreme Court argument concerning the Federal Election Commission’s banning of a political movie, several justices were aghast. Suddenly and belatedly they saw the abyss that could swallow the First Amendment.
Justice Antonin Scalia was “a little disoriented” and Justice Samuel Alito said “that’s pretty incredible.” Chief Justice John Roberts said: “If we accept your constitutional argument, we’re establishing a precedent that you yourself say would extend to banning the book” – a hypothetical 500-page book containing one sentence that said “vote for” a particular candidate.
What shocked them, but should not have, were statements by a government lawyer who was only doing his professional duty with ruinous honesty – ruinous to his cause. He was defending the mare’s-nest of uncertainties that federal campaign finance law has made and the mess the court made in 2003 when, by affirming the constitutionality of McCain-Feingold’s further speech restrictions, it allowed Congress to regulate speech by and about people running for Congress.
Kravitz fully expects the court on a 5-4 basis to vacate the speech restrictions in McCain Feingold. The affect of the ban lift would cause restrictions on corporate money to be lifted both at the State and Federal level. In effect gutting the main thrust of campaign finance legislation. Kravitz asks, and I agree, why have any campaign finance regulations save 100% virtually instant disclosure.
Historically fall session Supreme Court decisions are released before Christmas. This would be enough time for the rules to be changed for the special election currently underway in Massachusetts for Senate. By the end of this campaign corporations and unions may be able to spend unlimited money on the election. This is a potential game changer.