McCain-Feingold Gutted by Court: Big Business Elated

Update: AP: Obama promises ‘forceful response’ to Supreme Court ruling on campaign finance.  — The military-industrial complex and Big Pharma found a friend in the U.S. Supreme Court. In Citizens United v. Federal Election Commission (08-205), the Court’s decision, as the Brennan Center for Justice observes, “hands unprecedented power to big business, and may provoke the most drastic shift in American politics in more than a decade.”

Justices Stevens, Gingsburg, Breyer, and Sotomayor issued a 90-page dissent, in academically scathing tone that can be read as accusing the Republican majority on the Court as being ultra-activist, intellectually dishonest and outrageous in overruling 100-year-old statues banning for-profit corporations funding (in an unlimited manner) their favored candidates. [A stunning decision, but no serious Court observer ever accused Chief Justice John Roberts as not acting in the best interests of the Republican Party and its priorities.] Writes Justice Stevens:

The real issue in this case concerns how, not if, the appellant may finance its electioneering. …

Neither Citizens United’s nor any other corporation’s speech has been ‘banned,’ … . All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures. …

The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty … . Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life … .

The Court operates with a sledgehammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.

The problem goes still deeper, for the Court does all of this on the basis of pure speculation. …

[T]he majority thus posits a future in which novel First Amendment standards must be devised on an ad hoc basis, and then leaps from this unfounded prediction to the unfounded conclusion that such complexity counsels the abandonment of all normal restraint. Yet it is a pervasive feature of regulatory systems that unanticipated events, such as new technologies, may raise some unanticipated difficulties at the margins. The fluid nature of electioneering communications does not make this case special. The fact that a Court can hypothesize situations in which a statute might, at some point down the line, pose some unforeseen as-applied problems, does not come close to meeting the standard for a facial challenge. [A facial challenge to legislative Acts are the most difficult challenges to mount as it must be established that no set of circumstances exists under which the Act would be Constitutional.” United States v. Salerno] … .

Today’s decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality.