Oral arguments at the United States Supreme Court today could mark the end of more than 30 years of struggle for a tranche of conservative and libertarian intellectuals -- and for corporations that have had to find inglorious and meandering ways to influence the political system. Also at stake is how the court interprets the First Amendment. The stakes are that big.
Four weeks before the traditional First Monday in October start to its term, the court is taking the unusual step of convening to hear a case that does not involve life or death -- Citizens United v. FEC. Why the rush? Its ruling might very well require Congress to rewrite campaign finance laws in the middle of an election year, and the court is trying to be generous. The Supremes heard this case in March, but then it decided that the narrow range of issues at stake didn't do justice to the case. Like an edited version of a blog post, the court sent the case back to the litigants with the instruction to consider much broader principles than whether a certain action violated campaign finance laws.
The plaintiff is Citizens United, a non-profit run by conservative activist and former House investigator David Bossie. During the 2008 campaign, Citizens United accepted donations from the non-political bank accounts of corporations. Using some of that money, as well as other funds solicited directly from individuals, Bossie produced a critical movie about Hillary Clinton. The FEC, interpreting campaign finance laws, told Bossie it would be illegal for him to run television ads promoting his movie during the Democratic primaries because corporate cash can't be used to directly influence elections using television and radio. Bossie sued the government, and it was kicked up to the Supreme Court, which heard oral arguments in March.
It became apparent that the case touched many trigger points. It seemed, to opponents of campaign finance regulations, a perfect example of how the current legal framework directly impinged upon Bossie's free speech rights with no discernible public interest to balance out the restriction. The legal community that fights against campaign finance laws decided to try and use the case to challenge the entire edifice of law, philosophy and politics that limits what corporations and individuals can give. And the court's skeptics -- two new skeptics -- Justices Alito and Roberts -- agreed, especially after Obama's deputy solicitor general argued that, under the current law, the government could ban certain books during elections.
In 1976, a Solomonic court, in Buckley v. Valeo, birthed our modern system of campaign finance. It upheld parts of a 1974 law that limited the amount of money that individuals can give to political campaigns but found that the Constitution prohibited similar limitations on what campaigns or candidates can spend. By permitting contribution restrictions -- but not spending restrictions -- the court was trying to strike a balance between fairness and liberty. It interpreted the first amendment as a protective or prophylactic mechanism -- the compelling state interest here is that the political system becomes corrupt if people can directly donate any amount of money they want to give to campaigns at any point. The law was ostensibly neutral about political outcomes and therefore, in the court's reading, did not unnecessarily restrict speech; it merely protected the right of individuals to "speak" more fairly. In other words, the court tried to, in Ronald Dworkin's phrase, protect "citizens from politics" when politics conflicted with their freedom.
For years, dissenters have marveled at the Buckley majority's reasoning, noting that the ruling itself produced significant distortions -- that is, non-politically-induced changes -- to political campaigns, and that functionally made it more likely that individuals would try to influence campaigns in subtle, less direct and ultimately less accountable ways. These skeptics took an entirely different point of view about the First Amendment: it protects speech; and, in particular, political speech, and is less concerned about an equal material platform from which to influence campaigns than it is with the iron-clad guarantee that political speech must be protected at all costs. Representative of this reading: "If it is OK for a millionaire to spend his own money promoting his own campaign, why can he not give that money to someone else, who might be a more effective advocate for that millionaire's views, so that this other person can run for office," asks a Cato Institute blogger.