Supreme Court waking Up?

Campaign finance reform has always scares me.  Any attempt to limit financial contributions or independent expenditures during a political campaign violates, in my view, the first amendment and always benefits the incumbent candidates.  The only permissible means of controlling campaign finance, in my view, is quick and full disclosure on the internet of all contributions or expenditures so that the public can understand who is supporting the candidates and what that may mean to their future representation in office. 

To me the Bipartisan Campaign Reform Act of 2002 (usually referred to as McCain-Feingold Act after its primary sponsors) was and is appalling and unAmerican.  And those are its good points.

I was amazed and disappointed when several Supreme Court decisions upheld the constitutionality of provisions of the the act.  In a nation which protects pornography or racially derogatory material as free speech it is beyond me how political opinion can be suppressed.  We seem to have slipped a bit from our values and beliefs as provided by our founding documents. 

Well there is still hope.  The case Citizens United v Federal Election Commission came before the Court in 2008.  Oral Arguments were heard in March, 2009.  A decision was expected before the end of the current term of the Court in June of 2009.  However, on June 29, 2009, the Court ordered that the case be reargued on September 9, 2009, after briefing wider Constitutional issues including whether the Court should overturn one or more of its previous decisions on the validity of the McCain-Feingold act. 

The case involves a movie which presented then candidate Hillary Clinton in an unflattering light.  The movie was to be released in advance of important primary elections during the presidential race of 2008.  The United States District Court for the District of Columbia found that the movie and its promotional ads were electioneering communications and could be banned under the provisions of McCain-Feingold.  When argued before the Court, the deputy Solicitor General speaking for the government suggested that the law would permit banning books which fall within the definitions of expressed advocacy

The case is important since it is unusual for the Court to reverse its own decisions since the weight and importance of previous decisions (called stare decisis – it stands decided) gives the legal system some predictability and much of its validity.  Certainly the Court has changed its mind – Brown v Board of Education reversed generations of Court approved racial discrimination in schools.  But this case could impact recent cases, including a 2007 case where the opinion of the Court was written by Chief Justice Roberts, himself.  In order to attract five Justices to a decision in the present case, a narrow crafting of a “safe harbor” exclusion from regulation may be preferable to invalidating a section of the law. 

But not to me.

George Will has a good article about the issue at Townhall.com today.   link <here>.