With the special argument on rehearing in Citizens United v. FEC taking place today in the Supreme Court, the hysteria arising out of the campaign-reform crowd and their supporters in the press, like E. J. Dionne of the Washington Post, is really amazing. On the last day of its term in June, the Supreme Court asked for further briefing on whether it should reconsider its holding in Austin v. Michigan State Chamber of Commerce and McConnell v. FEC. The supporters of campaign-finance reform resemble Chicken Little running around saying the sky is about to fall down. Dionne can’t even get the most basic facts correct in a column he published about the case on Monday. He wrongly asserts that if CU wins this case, the Supreme Court will be “eviscerating laws that have been on the books since 1907 and 1947 — in two separate cases — banning direct contributions and spending by corporations in federal election campaigns.” Wrong, wrong, wrong.
In 1907, Congress passed the Tillman Act, which banned direct contributions by corporations to federal candidates. This Act, which campaign “reformers” and Dionne trumpet as a wonderful example of progressive law, was sponsored by Ben “Pitchfork” Tillman, probably the worst racist to ever serve in the United States Senate. He was chiefly responsible for the implementation of Jim Crow laws in South Carolina when he was governor and was proud of his record of disenfranchising and murdering black citizens. He sponsored the Tillman Act because, at that time, large corporations supported Republican candidates like Teddy Roosevelt, who had banned Tillman from the White House. Tillman wanted to stop corporate giving to help the Democratic party and hurt Republican candidates, who were supported overwhelmingly by blacks. The 1947 law Dionne refers to simply added unions to the corporate ban on direct giving.
However, the Austin case had nothing to do with direct contributions to federal candidates. The Supreme Court instead upheld a state ban on corporations engaging in independent political expenditures. It is a case that is completely at odds with other decisions of the Supreme Court that have consistently held that while direct contributions to candidates can be regulated, independent political expenditures cannot be restricted. Overturning the Austin case would in no way overturn the corporate and union ban on direct contributions to federal candidates. Moreover, the Supreme Court is only reconsidering the portion of the McConnell case that upheld the facial constitutionality of the electioneering communication provision. This bans certain advertisements by corporations and unions close to an election that simply name a federal candidate, even if the ad has nothing to do with an election and everything to do with a bill on an important issue that is coming up for a vote by the incumbent candidate.
I am hopeful that the Supreme Court will overturn its prior holdings in both of these cases and uphold the political-speech rights of the First Amendment. If it does so, it does not mean that the sky is falling in on campaign-finance reform, as Dionne claims, or that either the 1907 or 1947 law on direct contributions will be “eviscerated.” More’s the pity.