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.
This case, in other words, is now about the opening of the floodgates of special interest money into the campaign system. Here’s Rick Hasen, who has forgotten more about this stuff than most people will ever know:
If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama…. If after reargument in September, corporate limits fall – and limits on the money labor unions can spend on campaigns, with them – we may well look back on the 2008 election as a quaint time when the amounts spent on elections were relatively modest. Expect the floodgates to open, and the money to flow freely, as early as next year.
Hasen thinks, and I agree, that the Court is almost certain to overrule these cases (probably 5-4, or 5-3 if Sotomayor is not yet confirmed when the case is decided). We know for certain that Justices Kennedy, Scalia, Thomas will vote to overrule (they’ve said so in past cases). And it beggars belief to think that Roberts and Alito won’t go along, given the opportunity — Hasen reports that Alito has publicly expressed discontent with the current campaign finance cases, but has been unwilling to overrule past precedent until the issue was squarely presented and briefed. Now, it will be.
So once that happens, what next? Does it make any sense at all to retain paltry individual contribution limits like the federal $2,300 — or the state’s $500 (remember that a constitutional ruling will invalidate state campaign finance regulation on union and corporate expenditures too) — when unions and corporations will be free to flood the airwaves with all the ads they can buy? Should we just make the whole thing a free-for-all, as long as all expenditures are immediately disclosed?