Even more Beaumont news and
commentary The Boston Globe offers "Supreme
Court Backs Campaign-Gift Limits.". The
Washington Times offers
"Campaign
Fund-Raising Caps Imposed on Non-Profits." Todd Gaziano writes
this
op-ed in
USA Today. The
Charlotte Observer offers
"Supreme Court
affirms ban on donations by nonprofits." The
Denver Post offers
this
editorial. The
Los Angeles Daily News offers
"High
court upholds ban on contributions." (The
Los Angeles Times
story does not yet appear to be posted on the newspaper's website.)
I take strong issue with Bob Bauer's post that
Beaumont is not
news. (By the way, both Ed Still and I on our blogs incorrectly predicted
before oral argument that this case could have come out the other way.
So much for Bob's "no one---not one person" language.)
Rick and Ed
may have had different views about the possible outcome before oral argument:
I did not come across that view then or elsewhere, and I was only speaking,
as I could only speak, for my own experience and conversations
He may be right about the problem with using the "rebuke" language in
some press release, and he may be right that I'm overreading the "historical
prologue," but my view is that this case
is big news. I've already
given my detailed analysis, but let me just give a few headlines here,
and Bob can refute them one-by-one if he likes:
1. The Court reaffirms and bolsters
Austin's rationales for limits
on corporate campaign finance activity.
Austin is a case that
has been considered somewhat shaky as precedent.
Austin is a key
case toward upholding the constitutionality of BCRA's separate segregated
funds requirement for corporations and unions extended to "electioneering
communications."
Who has considered Austin "somewhat
shaky?" I did not expect the Court to use Beaumont to overturn
Austin, and I do not recall the suggestion that this would
happen, though I may have missed it. And what is the basis for the emphasis
on "reaffirmation": Is it news that the Court did not reverse itself on
Austin?
With all due respect, I am reminded of political
coverage that depends for its punch on setting some "expectation" and
then announcing that someone exceeded or fell way below it. In this sense,
I find the news somewhat self-manufactured.
2. The Court reaffirms and strengthens the anti-circumvention rationale,
mentioned in Colorado Republican II and extended to justify limits
on corporate election activity. As I noted yesterday, the anti-corruption
rationale simply helped the Court address the obvious objection that these
types of corporations could be said to have resources proportionate to
their level of political support, unlike for-profit corporations. This,
it seems to me, solves the problem in this case, without commiting the
Court to the deployment of this same rationale in McConnell.
3. The Court changes its views as to the merits of limiting the First
Amendment rights of corporations, at least in the context of elections.
(Note Jan Baran's unconvincing counterspin in the Washington Times
piece linked above, where Baran suggests that Nike v. Kasky would
be more on point.) I need a better understanding of the scope
of this suggested change. The Court did what a lot of people--perhaps
not all--thought it would do: it limited those rights in the context of
"direct contributions to candidates". That phrase--"direct contributions
to candidates"--was repeated so often, I cannot imagine that its narrowing
intention was inadvertent.
4. The majority managed to keep Justice O'Connor's votes on all these
propositions, where, given her dissent in Austin, one might have thought
to be quite difficult. Why difficult? Random language
from the Kennedy/O'Connor/Scalia dissent:
Our cases acknowledge the danger that corruption
poses for the electoral process, but draw line in permissible regulation
between payments to candidates ("contributions") and payments or expenditures
to express one's own views ("Independent expenditures"). Today's decision
abandons this distinction and threatens once-protected political speech. AND
Independent expenditures are entitled to greater
protection than campaign contributions. AND
Campaign contributions are subject to greater regulation
because of the enhanced risk of corruption....AND
The proper analysis must follow our cases in independent
expenditures. AND
Appellant's reliance on cases involving contributionms...is
misplaced.
What difficulty might she have perceived in
squaring this analysis with the majority's view in Beaumont? And
can it be news that someone might have thought she would find it difficult?
This is news again about expectations--the expectations of some--and not
about the case.
Not news? Not news.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com