By Savage, David
State Legislatures , Vol. 36, No. 9
It was good year at the Supreme Court for fans of the First and the Second amendments, but not for those who favor strict gun control and limits on election spending by corporations and unions.
Although freedom of speech and the right to keep and bear arms can hardly be described as new constitutional principles, both gained strength this year. The pair of 5-4 rulings on election spending and gun rights not only highlighted this court term, but their effect is likely to be felt for many years to come.
Campaign finance laws, both state and federal, look to be on shaky ground, particularly if they restrict political spending or equalize spending between candidates. Before 2006, the court's majority had upheld most of these laws in the belief that "big money" could distort elections and corrupt government. Its leading conservatives sharply disputed that view, however. They argued that since the election money at issue buys political speech, the government has no authority to restrict it. The First Amendment, they point out, says Congress "shall make no law ... abridging the freedom of speech."
When Justice Samuel A. Alito Jr. replaced Sandra Day O'Connor early in 2006, the court majority flipped. The conservative bloc had five justices who took the free-speech view of campaign finance. At first, the new majority moved cautiously. The justices struck down a Vermont law that sought to sharply restrict spending and contributions to state candidates, and they partly shielded nonprofit corporations from the McCain-Feingold Act and its ban on pre-election political ads.
This year, the new majority took aim at a much bigger target. For more than a century, profit-making corporations had been treated differently in the election laws. Congress in 1907 had prohibited corporations and national banks from putting money into election campaigns. Since shortly after World War II, federal law had prohibited both corporations and unions from contributing money to campaigns or spending money to elect candidates. About half the states had similar laws.
In Citizens United v. Federal Elections Commission, the court said "corporate political speech" deserved the same First Amendment protection as speech by individuals, and it struck down the prohibition on direct election spending by corporations as unconstitutional "censorship." Justice Anthony M. Kennedy said these laws "muffled the voices that best represent the most significant segments of the economy," and earlier decisions upholding such laws were overruled. "The government may not suppress political speech on the basis of the speaker's corporate identity," he said.
The decision frees the nation's largest corporations, such as Exxon Mobil or Chevron, to pour vast sums into election races for Congress. They might also choose to spend money through an oil-and-gas-industry coalition or the U.S. Chamber of Commerce. Unions and nonprofit corporations such as the Sierra Club and the National Rifle Association also can spend election money more freely, without the need to rely on a separate political action committee.
Two pillars of the campaign finance laws still stand. First, the court did not tamper with the restrictions on direct contributions to candidates. As such, a corporation may not give money directly to Senator Smithers or his opponent, although it now can pay for its own broadcast ads urging the voters to elect or defeat him. Second, the court upheld the principle of disclosure and said the sponsors of broadcast ads can be required to identify themselves and disclose who paid the cost.
The court's rulings have cast doubt on the "clean elections" laws in Arizona and six other states that seek to level the playing field for candidates. Two years ago the justices, in another 5-4 ruling, struck down the so-called "millionaires amendment" in the McCain-Feingold Act that had permitted a candidate to accept larger contributions if her wealthy opponent spent more than $350,000 of his own money. …