Political Speech Rules: The U.S. Supreme Court Has Ruled on Campaign Finance Laws and Will Soon Decide the Role of Political Parties in Choosing Candidates

By Savage, David G. | State Legislatures, October-November 2007 | Go to article overview

Political Speech Rules: The U.S. Supreme Court Has Ruled on Campaign Finance Laws and Will Soon Decide the Role of Political Parties in Choosing Candidates


Savage, David G., State Legislatures


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The Supreme Court has finished just its second year under Chief Justice John G. Roberts Jr., and already it is clear a new majority will cast a skeptical eye on laws that regulate campaign money.

"The 1st Amendment requires us to err on the side of protecting political speech rather than suppressing it," Roberts said in June for a 5-4 majority. The ruling freed groups to use corporate money to pay for pre-election broadcast ads that discuss candidates running for office, ads that were banned by the McCain-Feingold Act.

Election-law experts say the decision not only signals a shift in the law, but posts a warning to those reformers--state or federal-who want to limit the impact of money in politics. "With the replacement of Chief Justice Rehnquist and Justice O'Connor with Chief Justice Roberts and Justice Alito, the pendulum has swung sharply away from Supreme Court deference to campaign finance regulation," says Professor Richard Hasen of the Loyola Law School in Los Angeles. "All the signs point to deregulation in the future."

For years, the Court had been closely split on how to view money in politics. Some say campaign money should be closely regulated to prevent wealthy interests from unduly influencing elections. Others argue that since this money pays for campaigning, it is political speech that should be protected from regulation by the 1st Amendment's guarantee of freedom of speech. Roberts and Alito have taken the free-speech view and aligned themselves with Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Now, a five-member majority says the 1st Amendment forbids strict regulation of campaign money, even when the funds come from corporations or unions.

Last year, the court struck down a Vermont law that sought to sharply limit how much candidates for state office could raise or spend on their campaigns. The decision in Randall v. Sorrell crushed the hopes of reformers who sought to replace costly campaign mailings and broadcast ads with the grass-roots politics of coffee shops and town hall meetings. Justice John Paul Stevens, speaking for the dissenters, said the court should "permit states nationwide to experiment with these critically needed reforms." But the majority espoused a free-market and free-speech view that does not allow for such strict regulation.

This year's decision in FEC v. Wisconsin Right to Life goes a step further because it extends free-speech protection to corporate money. In the past, the Supreme Court had upheld state laws that forbid corporations from sponsoring ads that endorse or oppose candidates for office. Similarly, for a century, federal law has made it illegal for corporations to fund a candidate or his or her campaign. While the Supreme Court did not directly strike down these state or federal limits on corporations, Roberts emphasized that the 1 st Amendment protects a "corporation's ability to engage in political speech." The U.S. Chamber of Commerce called the ruling a major victory for "corporate free speech," one that may well foreshadow further challenges to state laws that limit the power of corporations in politics.

THE POWER OF THE PARTIES

This fall, the Supreme Court will turn its attention to the rights and roles of the political parties in nominating candidates for office. A pair of cases, one from Washington and one from New York, ask whether the parties have too much power--or maybe too little--in determining who appears on the general election ballot.

"These cases are like book ends," says Dan Schweitzer, the Supreme Court counsel for the National Association of Attorneys General. "New York is said to violate the 1st Amendment by giving parties too much control over the nominating process [for judges]. Washington is said to violate the 1st Amendment because it takes away the party's control of the process." It is hard to believe both views of the 1st Amendment could be correct, which may explain why the Supreme Court agreed to hear appeals from the two states in early October. …

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