Further reason that the Court might reasonably be expected to overrule its holdings in Austin and McConnell in the pending case of Citizens United v. FEC is provided by what election-law expert Rick Hasen—who opposes the overruling of those holdings—calls the government’s “remarkable” brief. As Hasen put it (in a post in late July):
[T]he government does not even mention the central holding of Austin, much less defend it. To put this in context, before Austin, in Buckley v. Valeo the Court had held that contributions to candidates could be limited because of the government’s interest in preventing the corruption of elected officials (through quid pro quos and otherwise) and the appearance of such corruption, but that independent spending by individuals could not be limited consistent with the First Amendment. With truly independent spending, the Court in Buckley said, the link to corruption of candidates is too tenuous, and the costs to freedom of speech and association too high to justify such limits. Buckley did not deal with corporate spending limits, but in a 1981 case, First National Bank of Boston v. Bellotti, the Court held that corporate spending limits in ballot measure elections, in which candidates are not involved, are unconstitutional. In Austin, however, the Court held that corporate spending limits are constitutional. The key passage in Austin is the following:
… Regardless of whether [the] danger of “financial quid pro quo” corruption may be sufficient to justify restriction on independent expenditures, Michigan’s regulation aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas. The Act does not attempt “to equalize the relative influence of speakers on elections”; rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations may accumulate large amounts of wealth is not the justification for [the Act]; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures.… [internal citations omitted]
Though the Austin Court spoke of a “different type of corruption” (like the “other white meat”), the anti-distortion rationale is better thought of as a type of equality argument, rejecting “disproportionate” corporate spending that can “unfairly influence elections.” …
[T]he government brief does not mention the rationale, even in passing …. [I]t is no surprise that the government does not want to emphasize Austin anti-distortion. After all, as I detail here, this equality rationale has already been undermined by the Court’s recent opinion in FEC v. Davis …. But in passing on discussing the equality/anti-distortion rationale, the government puts a great deal of effort into an argument that only Justice Stevens has embraced (in his Austin concurrence): that the government can justify limits on corporate independent spending to prevent quid pro quo corruption of candidates. In other words, the argument that the government pushes here requires the Court to reject, at least in part, one of the central tenets of Buckley, that independent spending cannot be limited because the independent nature of the spending means it cannot corrupt candidates.…
1. The Solicitor General, representing the FEC and presumably complying with the office’s usual practice of advancing all arguments that can reasonably be made in defense of a federal statute, has walked away from the Court’s actual rationale in Austin. The SG’s abandonment of Austin’s actual rationale is all the more striking as the Court’s opinion in Austin was written by Justice Thurgood Marshall, for whom SG Elena Kagan served as a law clerk (in an earlier term).
2. According to Hasen (whose expert judgment I defer to, all the more so here because it is adverse to his favored position), Austin’s actual rationale “has already been undermined” by recent precedent.
3. Again according to Hasen, the defense of Austin that the SG is advancing is contrary to “one of the central tenets of Buckley.”
I recognize that there are some other factors that might reasonably be thought to cut against the Court’s use of Citizens United as the occasion for overruling its holdings in Austin and McConnell, and I haven’t paid enough attention to the case, or to campaign-finance case law generally, to offer a bottom-line judgment on that question. I’ll limit myself to the observation that it would seem to me presumptively unobjectionable for the Court to overrule a precedent that is based on a rationale that a supportive SG (supportive of the precedent, that is) won’t even defend, especially when the perpetuation of that precedent would create or extend conflict with other better-regarded precedents.