Adversaries Of Campaign Finance Rules Urge Court to Overturn Precedent
“This faux judicial restraint,” Scalia wrote in his opinion, “is judicial obfuscation.”
Two years later, Roberts and Alito may be preparing to heed that criticism and directly overturn precedents allowing restrictions on corporate political spending. The justices next week will hold an unusual September argument to revisit two rulings, including a 1990 decision that said corporations can be barred from using general treasury funds to pay for campaign advertisements.
The case may become a turning point for the court under Roberts. The chief justice and Alito, both George W. Bush appointees, so far have shied away from explicitly reversing precedents, refusing to go as far as fellow conservatives Scalia and Clarence Thomas.
In the campaign finance case, sparked by a 2008 documentary critical of then-presidential candidate Hillary Clinton, the court already held an hour-long argument that could have resolved the case on narrower grounds. A majority instead decided to schedule a second session to confront the courts prior rulings governing corporate and union spending.
“Theyve teed it up for the bigger decision,” said Kenneth Gross, a campaign and election lawyer at Skadden Arps Slate Meagher & Flom LLP in Washington.
Controlling the Outcome
Roberts and Alito will probably control the cases outcome. Scalia, Thomas and Justice Anthony Kennedy have said they would overrule both the 1990 decision, Austin v. Michigan Chamber of Commerce, and the part of the 2003 McConnell v. Federal Election Commission ruling that the court is reconsidering as well.
Both Roberts and Alito vowed during their Senate confirmation hearings to respect precedent. Like other nominees, they left open the possibility of overruling decisions that had proven unworkable or been undermined by later developments.
“It is a jolt to the legal system when you overrule a precedent,” Roberts said during his 2005 hearing.
Alito testified in 2006 that the courts tradition of adhering to precedents “reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.”
Limiting Precedents
They took a different approach in May, voting to overturn a 1986 decision that forbade police from initiating questioning of a suspect who had requested appointment of counsel during arraignment.
That ruling came at the urging of President Barack Obamas administration. The administration, represented by Solicitor General Elena Kagan, now is arguing against overturning the campaign finance rulings.
In a court filing, Kagan urged the court to reaffirm the “settled” principle that “corporations may be barred from using treasury funds for independent electoral advocacy.” Corporations, as well as labor unions, can form political action committees for such advocacy.
Hillary: The Movie
The case concerns “Hillary: The Movie,” a 90-minute film that Washington-based Citizens United sought to air on a video- on-demand channel during Clintons 2008 presidential campaign. She is now Obamas secretary of state.
A three-judge panel said the movie was akin to an ad. That made it subject to a 2002 laws ban on the use of corporate or union general treasury funds for broadcast ads that advocate for or against a federal candidates election. Citizens United didnt qualify for an exemption for some non-profit corporations.
The Supreme Court in the McConnell case upheld that provision, then narrowed it in 2007 to apply only to ads obviously intended to urge a “vote for or against a specific candidate.” Robertss majority opinion in that case was the one that drew Scalias criticism.