Campaign Finance Law Under Supreme Court Scrutiny

In a Supreme Court summer session termed “unusual,” campaign finance laws will receive the Court’s scrutiny.

Supreme Court


In the spotlight is the McCain-Feingold provisions for spending limits by corporations and unions. The question: is it constitutional to limit corporate political spending?

The court is reaching out to decide the foundational question about the rights of corporations in political campaigns,” said Nathaniel Persily, a professor at Columbia Law School. “It’s the last step in several incremental moves the Roberts Court has made to strike down the pillars of campaign-finance law.”

Since the court largely upheld McCain-Feingold in 2003, Justice Sandra Day O’Connor, who voted with the majority in that opinion, has retired and been replaced by Justice Samuel Alito, who has voted to limit certain aspects of McCain-Feingold in prior cases.

The subject that took me the above Wall Street Journal post was: Decisions Indicate Supreme Court Moved Rightward This Term. Being the scholar that I am not, I don’t see that conclusion, but whatever….With our government in Democrat hands, and one or more judges perhaps retiring after Justice Breyer, any move to the right is probably temporary.

I did find a very interesting piece at the SCOTUS Blog. Written by Tom Goldstein, he talks about the appropriate way in which Justice Roberts is leading the court into measured decisions that will be unimpeachable:

It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law. This approach may be in the starkest relief if next Term the Court cites its recent decision in Wisconsin Right to Life as precedent for concluding that McConnell v. FEC and Austin v. Michigan have been significantly undermined and should be overruled. The plurality and concurrence in Wisconsin Right to Life famously debated how aggressively the Court should go in overruling prior campaign finance precedent. The Chief Justice urged patience – not moving more quickly than required – and the wait may not have been long.

About Justice Roberts:

Overgeneralizing broadly, conservatives believe that doctrines like substantive due process, the exclusionary rule, and a high wall separating church and state aren’t merely wrong but overstep the limited role of judges and endanger the legitimacy of the Supreme Court. Turning back those decisions, in turn, is thought to (among other things) enhance respect for the Court. The Chief’s professional life is defined by the Court — as a clerk, Principal Deputy Solicitor General, private practitioner, and now the Chief Justice — and his institutional commitment to it, including ensuring that it is regarded as an institution of integrity rather than a political football (see my earlier post on the Ricci opinion) — is profound.

But that perspective – when taken by a thoughtful judge who has the long view – also counsels in favor of moving at a measured pace. If the Court instead were to announce in rapid succession the overruling of its prior decisions permitting regulation of campaign contributions, guaranteeing a right to an abortion, and finding affirmative action consistent with the Fourteenth Amendment, then the public would likely be left with the impression that constitutional law is nothing more than a power play between competing ideologies that reflect nothing more than the happenstance of the most recent appointments.

Read the entire article at SCOTUS Blog.

From the BLT (The Blog of Legal Times) we learn how a few of the Justices will spend a portion of their summer:

July will also find Justice Samuel Alito Jr. teaching in Innsbruck, Austria at St. Mary’s University School of Law’s summer program there. Last year, Chief Justice John Roberts Jr. taught in the same program and was paid $15,000, according to his recently released financial disclosure form.

Speaking of Roberts, he is scheduled to teach a course in July on the history of the Supreme Court at the New England School of Law program in Galway, Ireland.

Around the same time, Justice Ruth Bader Ginsburg is scheduled to teach in Rome, hosted by Loyola University Chicago School of Law.

Justice Anthony Kennedy, for his part, will return to Salzburg, Austria for his 20th straight year, teaching in McGeorge School of Law’s summer program. Last year, McGeorge paid him $21,700. In August, Kennedy is also due to speak at the Chautauqua Institution’s famed summer program in New York.

So for now, we have an “unusual” Supreme Court summer session called for September 9th to look into McCain-Feingold Campagin Finance Law. Much needed scrutiny, in my opinion.