Rick Hasen worries that the Supreme Court appears ready to strike down, on free speech grounds, a large chunk of the McCain-Feingold campaign finance law--the part that bans corporate funding of election season broadcast ads. Amazingly, Justice Kennedy is not the swing vote on this issue, Hasen notes. He's already come out with Scalia and Thomas against the law. He's a done deal. Roberts and Alito-- they're the swing votes! Yikes. Add them to the previous three and you would have a sure majority of 5 even if Obama had nominated Dahlia Lithwick to fill Souter's seat.
Hasen predicts a near nuclear disaster for the goo-goo campaign finance lobby: SCOTUS will nix the whole decades-long attempt to keep corporate and union money out of campaign ads--in effect declaring that it's OK if for-profit corporations and unions use their unlimited funds to run spots attacking specific candidates.
I'm not so sure.
After all, isn't there a pretty obvious "right" answer in these cases--at least an answer that all concerned civic-minded centrists should approve. It's this: restrict ads funded by for-profit corporations. Allow ads funded by non-profit "ideological" corporations (and regular, unincorporated individuals--even the Wylys ).
The original McCain-Feingold bill, remember, banned only for-profits. There was a good reason for drawing that line: It's one thing to stop GM,say, from using the millions in profits it generates as a limited liability corporation** to meddle in electoral politics.*** It's another thing to ban political speech by non-profit groups like Sierra Club and the NRA--organizations whose purpose is to let individual citizens meddle in politics exactly as we should want citizens to meddle in politics.
It was the late, beloved and deeply misguided Sen. Paul Wellstone who broadened the original McCain-Feingold ban to include those non-profit advocacy groups. Wellstone successfully tapped into Congressional incumbents' natural desire to block any potentially damaging ad from any source they don't control. McCain and Feingold both voted against Wellstone's change to their bill. ("If I thought it was constitutional, I would have voted for it," said McCain at the time.) The New York Times ed board commanded that "The Senate must undo Mr. Wellstone's damaging amendment." But the Senate for some reason did not obey. The amendment stood un-undone.
Yet now the Supreme Court can undo it, no? That wouldn't be hard. They'd just have to embrace and apply the so-called "MCFL exception"-- named after a small nonprofit corporation, Massachusetts Citizens for Life, that the Court seemingly said could distribute pro-life propaganda without limiting the size of the individual donations it accepted, as long as it didn't take for profit corporate money or union money .
And why isn't that exactly what the Court will hold in the fall when it takes up the issue (after punting on it yesterday)? One answer is that the litigant currently before the Court--a non-profit outfit that made an anti-Hillary movie-- has admitted it actually takes for-profit corporate money . They've put themselves on the wrong side of the for profit/non-profit line ( perhaps intentionally ). If you buy the idea that Roberts and Alito really don't want to uphold any campaign finance laws, then you'd think they would have teed up a different case if they wanted to draw a profit/nonprofit funding distinction . Roberts and Alito don't want to have to say that, "Hey, McCain Feingold is OK as applied to this anti-Hillary group because of its tainted 'for profit' donations, but ...." Which leads to Hasen's speculation that what they're really going to say is that McCain Feingold isn't OK as applied to anybody --non-profit, for-profit, whatever.
But surely they have other tricks they could pull--tricks that would allow them to not approve applying the McCain-Feingold law to this particular 'tainted' litigant while codifying the "MCFL" rule. Here's one: Declare that the "MCFL exception" applies to outfits that get a proportionately insignificant amount of for-profit money--not merely to outfits that get no for-profit money. Then remand to a lower court for a hearing on how much money this particular anti-Hillary group gets from which sources.
The upshot: Ads funded without any for-profit money or union money would be home free--Wellstone's amendment would be unconstitiutional. As for ads that are funded by for-profit corporations and unions ... well, Justices Roberts and Alito could say, come see us again in a few years.
So decided! Next case. ... Or have I missed something? ...
Update: Prof. Hasen responds --
I think if CJ Roberts and Justice Alito just wanted to expand the MCFL exemption, they likely could have gotten some liberal votes for that, and would not have needed to set the case for briefing on a nuclear-type issue
Hmmm. Are we sure the liberals want to expand the MCFL exemption? That would mean expanding constitutionally protected advocacy by rich people at the expense of regulations limiting their spending and "leveling the playing field." Free speech is a dangerous principle once you let it loose. The whole current structure of campaign finance could come unraveled if massive, effective, and uncontrolled "independent" spending by random citizens becomes commonplace, no? ...
Part of the problem, maybe, is that neither side wants to take the obvious, centrist MCFL route. The legalistic left thinks "money isn't speech" and wants to limit political advocacy by the Wylys and Scaifes of the world. The lawyerly right thinks spending on advocacy by faceless for-profit corporations is as sacred as spending by actual human citizens. ...
P.S.: Hasen notes that the Court asked for more briefs specifically on the "nuclear" issue of whether to declare McCain-Feingold's entire ban on "corporate" election ads unconstitutional on its face. But I'm not sure you can draw a blazing arrow between what issues the judges want briefed and how Roberts and Alito will rule in the crunch next year. Maybe the extra briefing is just a way to suck up to Justice Kennedy, or to delay the case until Souter is gone, perhaps in the hope that Sotomayor will be more flexible (or less persuasive). ... Update: Alert reader J adds:
Could it be that the request for briefing on the nuclear issue is in part (at least) directed to forcing the two sides to confront the question of whether they have a backup position that might be more centrist? The court knows that everyone and his brother will file as amici in this round. Is it saying, look, you are looking at the possible destruction of everything, and you know that we are crazy enough, or sufficiently imbued with first amendment spirit, to do that. Are you sure you don't want to give us cover to work out a centrist, practical, solution that will put this issue to bed within shouting distance of reason?
**--OK, bad example.
***--Similarly, unions are also given a special privilege by the state--the right to act as the exclusive bargaining agent for all employees--that allows them to amass cash. With special privileges come special restrictions, you could argue. If union members formed a non-profit on their own, it would be a different story. 8:08 P.M.