U.S. Supreme Court maneuvering in a case involving corporate money in political campaigns suggests that the right wing majority on the court is practicing judicial activism. The case involves a corporate documentary last year that was critical of Hilliary Clinton. According to an article today in the New York Times entitled “High Court Poised to Rewrite Spending Rules” the US Supreme Court appears to be setting up to overturn major provisions of the McCain Feingold law that it upheld just 2 years ago.
What has changed in those 2 years is that two more conservative justices have been appointed to the Court – Justices Roberts and Alito. As the New York Times notes “The Roberts court has struck down every campaign finance regulation to reach it, and it seems to have a majority prepared to do more. “
The issue involves “corporate money” in campaigns. The conservatives say that limiting the spending of corporate money is equal to limiting free speech. They argue limiting corporate money in elections violates the first amendment.
Of course there are several assumptions here that are questionable. One is that corporations should be accorded the same rights as citizens under the first amendment and second the assumption that equating the ability to spend money is somehow equivalent to a free speech right. The reality is that money buys access and exposure and corporations in general have more access to money that individuals.
The problem here is how you reconcile fairness in elections with lavish spending of money by special interests. Obviously the more money a corporation has, the more ability they have to get their message out to the voters. Thus the more money they have, the more “free” speech they have. At what point does corporate free spending of money overwhelm the ability of those with limited ability to raise money to have their voice heard?
The issue as the NY Times states is that “The court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics,” said Nathaniel Persily, a law professor at Columbia. “The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.”
The issue is another that denotes the hypocrisy of conservatives. They argue against judicial activism, unless it is their own activism. Its just like conservative Republicans arguing for the sanctity of marriage except when its their marriage. Look not at what they say, but what they do. In this case it appears they are actively working to overturn a law they don’t agree with now, that two years ago a court without Roberts and Alito supported.
The current case as stated by the NY Times
“involves “Hillary: The Movie,” a slashing political documentary released last year while Mrs. Clinton, now the secretary of state, was seeking the democratic presidential nomination. The film was produced by Citizens United, a conservative advocacy group that is a nonprofit corporation.
The McCain-Feingold law bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before a general election.
The law, as narrowed by a 2007 Supreme Court decision, applies to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” It also requires spoken and written disclaimers in the film and ads for it, along with the disclosure of contributors’ names.”
A Supreme Court with several Obama appointees could very well reverse the negative climate against campaign finance restrictions. See related article e.g. on Sonja Sotomayor in NY Times entitled, “A Long Record on Campaign Finance, Often in Support of Regulations” which notes that “In 1996, Judge Sonia Sotomayor delivered a speech comparing campaign contributions to “bribes” and asking whether elected officials could credibly say they were “representing only the general public good, when private money plays such a large role” in helping them win office.”
This threat of new appointees to the US Supreme Court by Obama obviously seems behind this manoeuvring by the present court to reverse McCain Feingold and their two year old decision. This is the type of judicial activism we need to fear – a conservative US Supreme Court hell bent on attacking laws they don’t support. They are trying to act before the Court changes to a more mainstream philosophy that the American people support. This distorted right wing philosophy of judicial activists like Roberts and Alito intent on changing US laws they don’t like will remain a threat until the makeup of the US Supreme Court changes.