Can’t we just strike down McCain-Feingold and be done with it?

From the NYTimes:

WASHINGTON — The Supreme Court will cut short its summer break in early September to hear a new argument in a momentous case that could transform the way political campaigns are conducted.

The case, which arises from a minor political documentary called “Hillary: The Movie,” seemed an oddity when it was first argued in March. Just six months later, it has turned into a juggernaut with the potential to shatter a century-long understanding about the government’s ability to bar corporations from spending money to support political candidates.

The case has also deepened a profound split among liberals, dividing those who view government regulation of political speech as an affront to the First Amendment from those who believe that unlimited corporate campaign spending is a threat to democracy.

At issue is whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. Re-arguments in the Supreme Court are rare, and the justices’ decision to call for one here may have been prompted by lingering questions about just how far campaign finance laws, including McCain-Feingold, may go in regulating campaign spending by corporations.

The Boston Globe has a few excerpts from briefs filed in the case.

Some in favor of free speech:

–The law’s “reliance on the hypothetical response of a reasonable listener still leaves speakers guessing about what speech is lawful and what speech is not. That uncertainty invites arbitrary and discriminatory enforcement. It will also lead many speakers to self-censor rather than risk sanctions or undertake the expense of suing the FEC prior to speaking, especially since most suits will not be resolved until long after the speech is timely and relevant.” — American Civil Liberties Union.

…

–The court “should recognize no compelling governmental interest in criminalizing independent union electoral speech.” — AFL-CIO.

Some against:

–“To change course and create a new constitutional right for corporations to make unlimited expenditures in candidate elections would reverse our centuries-long march of progress toward greater democracy and run contrary to constitutional text and history.” — League of Women Voters and the Constitutional Accountability Center.

–“The constraints that drive a corporation’s political speech — the requirement that corporate actions all must be calibrated toward profit — directly undermine the notion that a corporation can be a free participant in the marketplace of ideas. And precisely because a corporation enjoys significant state-created economic advantages designed for the narrow purpose of furthering wealth-accumulation, corporate participation in candidate campaigns promotes market entrenchment and corrupts the political marketplace in a fundamentally undemocratic manner.” — American Independent Business Alliance.

I’m a near-absolutist when it comes to free speech issues. And I’ve always thought that campaign finance limits tend to mostly protect incumbents from challengers. So, you can probably guess how I lean on this:

In their support for limits on contributions to political candidates, campaign finance reformers seem to usually scoff at the notion that money equals speech. That is, they dispute the idea that by limiting my ability to contribute to a candidate of my choice, they are stifling my political speech.

In a case like this, however, they appear quite willing to directly stifle political speech because, apparently, it might have the same effect as a campaign contribution. That is, speech equals money. Hypocrites.

One interesting aspect of this case is that it will give an early look at Justice Sotomayor’s approach to this issue. The First Amendment Center’s Ronald K. L. Collins says the new justice is unlikely to have any major impact on the decision because there are already five likely votes to overturn corporate limits.

-chiptaylor