January 21, 2010

IF THEY'D SEATED BOB BORK THIS WOULDN'T HAVE HAPPENED:

Money Grubbers: The Supreme Court kills campaign finance reform. (Richard L. Hasen, Jan. 21, 2010, Slate)

Today Justice Kennedy wrote for a court majority of the five conservative justices. He effectively wiped out a key provision of Congress' 2002 campaign finance reform. He also did indeed strike down Austin and parts of McConnell. To Justice Kennedy, any limits on the independent spending of money in elections smacks of government censorship. The limits Congress enacted in 2002 remind him of old English laws requiring licensing for speech. He talked about the byzantine sets of federal laws and regulations involved—genuinely confusing, it's true—and said that none of it was permissible under the First Amendment. He talked of the rise of the Internet and blogs and how the government could soon come in and start regulating political blogging if the court did not step in.

Though the decision deals with federal elections, expect state and local corporate and union spending limits to be challenged, and to fall, throughout the country. There are many responses to Justice Kennedy's reasoning. He wrongly assumes that corporations or unions can throw money at public officials without corrupting them. Could a candidate for judicial office, for example, be swayed to rule in favor of a contributor who donated $3 million to an independent campaign to get the candidate elected to the state supreme court? Justice Kennedy himself thought so in last year's Caperton case. And yet he runs away from that decision in today's ruling. Justice Kennedy acknowledges that with the "soft money" limits on political parties still in place, third-party groups (which tend to run more negative and irresponsible ads) will increase in strength relative to political parties. And that possibility raises the real chance Congress will repeal the "soft money" limits, thereby increasing the risks of quid pro quo corruption.

There's more to criticize in the opinion. Should the American people, through Congress, be able to decide that the vast economic inequality that comes with our wonderful capitalist system should not translate into vast political inequality?


As a Constitutional matter, there's no problem with limits on corporate speech and no justification for limits on political speech individuals.

Posted by Orrin Judd at January 21, 2010 2:38 PM
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