United States Supreme Court, in a close and controversial decision, strikes down restrictions on corporate “soft money” political campaign spending.
The Issue: In a case likely to have severe repercussions, the United States Supreme Court has held that the First Amendment prevents limits on the amount of money a corporation can spend on political communication during an election campaign. In reaching its decision, the Court found that corporations have First Amendment rights comparable to those of individuals to participate in political campaigns. The case presented a stark contrast to the Court’s characteristic pronouncements on the value of judicial restraint. In order to reach and overturn precedent that stood in the way of this conclusion, the Court took the highly unusual step of broadening the questions raised by the parties and carrying over the case from one Term to the the next. As Justice Stevens wrote in dissent, “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Why It Matters: It has long been clear that, as the cost of campaigning continues to grow, American democracy is increasingly influenced by the power of private money. Elected officials’ dependence on donations by large businesses has already made it difficult to pass legislation and shape policy in ways that put the good of the public first. Removing limits on corporate “independent” expenditures will exacerbate the problem. Corporations have the financial resources to skew, if not totally overwhelm, political discourse by effectively drowning out other voices. The result will be the opposite of the robust public debate that the First Amendment was designed to foster.
Contribution of Public Good: Public Good filed a brief on the merits in the United States Supreme Court in favor of upholding long-established precedents that permit corporate political spending to be regulated more stringently than spending by individuals. Public Good’s distinctive contribution was to explain the basis for this distinction, even within the framework of the Court’s previous decisions finding that corporate speech is constitutionally protected. Crucially, corporate speech is protected principally to safeguard the interests of listeners in receiving communications, and it has long been implicit in Supreme Court jurisprudence that the rights of listeners call for less absolute protection than do the rights of individual speakers, which are not at stake in corporate campaign spending.
Outcome: In what the New York Times described as a “disastrous” ruling, “likely to be viewed [by history] as a shameful bookend to Bush v. Gore,” the Supreme Court voted 5-4 to find corporate political spending fully protected by the First Amendment, overturning its own precedents and “thrust[ing] politics back to the robber-baron era of the 19th century.”
530 F.Supp.2d 274 (D.D.C. 2008), affirmed in part, reversed in part, and remanded, 130 S.Ct. 876 (2010).