Campaigns, Guns and Jails: States Have a Lot at Stake in the Supreme Court's New Session, Including a Pivotal Case on Election Spending

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A decade before President Teddy Roosevelt pushed through Congress a ban on corporate contributions to candidates, at least five states had enacted their own corporate spending bans in state election races. Kentucky was first in 1891, followed a few years later by Florida, Missouri, Nebraska and Tennessee. These days, many states either prohibit or strictly limit corporate campaign funds.

But all those laws are now in danger of being found unconstitutional at the hands of the U.S. Supreme Court and its hardening view that campaign spending is free speech, regardless of the source of the money. This summer, the court announced it would consider overturning its prior rulings that upheld the power of states and Congress to keep corporate treasury funds out of election races. It held a special argument session in early September to debate the issue.

The move set off alarms among supporters of the campaign finance laws and the state attorneys general. "There is a lot of history behind these laws. This could draw all of them into question," says Montana Solicitor Anthony Johnstone. He filed a friend-of-the court brief on behalf of 26 states. "The court should not unsettle the foundations of a century of state laws."

The campaign spending case, Citizens United v. Federal Election Commission, figures to be the most far-reaching dispute before the Supreme Court as it begins its new term. it's not the only case of importance to the states, however. In a pair of cases from Florida, the justices are being asked to put new limits on a state's power to imprison juvenile offenders for life. The court may also extend the Second Amendment rights of gun owners to challenge state and local gun-control measures.


Justice Sonia Sotomayor took her seat this fall, and she is--as everyone knows-the first Hispanic and the third woman in the court's history. She will also be its third New Yorker--joining Justices Antonin Scalia and Ruth Bader Ginsburg--none of whom has been shy about sounding off during oral arguments.

By that measure, Sotomayor may differ considerably from the generally reticent and now-retired Justice David H. Souter from New Hampshire. But otherwise, Sotomayor is not likely to change the ideological balance of the court. Souter was a defender of the campaign finance laws, and Sotomayor is expected to be the same. Before becoming a judge, she served on a New York board that enforced the city's campaign funding ordinances.

But recently, the court's majority flipped on campaign finance laws, and the effect of that shift is still being felt. With Justice Sandra Day O'Connor in the majority, the court upheld the McCain-Feingold Act against a free-speech challenge by a 5-4 vote in 2003. But when O'Connor retired and was replaced by Justice Samuel A. Alito Jr. in 2006, the balance tipped toward the free-speech side.

That year, the court struck down Vermont's effort to restrict spending in state election campaigns, including setting very low limits on contributions to candidates. Both parts of this law were declared to violate the First Amendment, the court held in Randall v. Sorrell. A year later, the 5-4 majority weakened part of the McCain-Feingold Act that forbids corporate or union-funded broadcast ads that target federal candidates in the two months before the election.

Chief Justice John G. Roberts Jr. said that corporate-funded groups in this instance, Wisconsin Right to Life Inc.--can sponsor ads that criticize lawmakers, so long as they do not expressly advocate their defeat. "The First Amendment requires us to err on the side of protecting speech rather than suppressing it," he said. Justices Scalia, Anthony M. Kennedy and Clarence Thomas said they would have gone further and struck down this part of the McCain-Feingold Act entirely, rather than merely limit its reach.


The showdown over campaign finance laws arrived earlier this year, but in a most unlikely case. …