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Foes of Campaign Finance Rules Urge Court to Overturn Precedent
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| U.S. Supreme Court Justice Antonin Scalia delivers his keynote speech for the "Rule of Law" conference sponsored by the Louisiana State Bar Association in New Orleans, Tuesday, May 5, 2009. (AP Photo/Bill Haber) |
By Greg Stohr, Bloomberg
Justice Antonin Scalia minced no words in a 2007 campaign spending case when he accused colleagues John Roberts and Samuel Alito of lacking candor by overruling a U.S. Supreme Court precedent without saying so.
“This faux judicial restraint,” Scalia wrote in his opinion, “is judicial obfuscation.”
Two years later, Roberts and Alito may be preparing to heed that criticism and directly overturn precedents allowing restrictions on corporate political spending. The justices next week will hold an unusual September argument to revisit two rulings, including a 1990 decision that said corporations can be barred from using general treasury funds to pay for campaign advertisements.
The case may become a turning point for the court under Roberts. The chief justice and Alito, both George W. Bush appointees, so far have shied away from explicitly reversing precedents, refusing to go as far as fellow conservatives Scalia and Clarence Thomas.
In the campaign finance case, sparked by a 2008 documentary critical of then-presidential candidate Hillary Clinton, the court already held an hour-long argument that could have resolved the case on narrower grounds. A majority instead decided to schedule a second session to confront the court’s prior rulings governing corporate and union spending.
“They’ve teed it up for the bigger decision,” said Kenneth Gross, a campaign and election lawyer at Skadden Arps Slate Meagher & Flom LLP in Washington.
Controlling the Outcome
Roberts and Alito will probably control the case’s outcome. Scalia, Thomas and Justice Anthony Kennedy have said they would overrule both the 1990 decision, Austin v. Michigan Chamber of Commerce, and the part of the 2003 McConnell v. Federal Election Commission ruling that the court is reconsidering as well.
Both Roberts and Alito vowed during their Senate confirmation hearings to respect precedent. Like other nominees, they left open the possibility of overruling decisions that had proven unworkable or been undermined by later developments.
“It is a jolt to the legal system when you overrule a precedent,” Roberts said during his 2005 hearing.
Alito testified in 2006 that the court’s tradition of adhering to precedents “reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.”
“This faux judicial restraint,” Scalia wrote in his opinion, “is judicial obfuscation.”
Two years later, Roberts and Alito may be preparing to heed that criticism and directly overturn precedents allowing restrictions on corporate political spending. The justices next week will hold an unusual September argument to revisit two rulings, including a 1990 decision that said corporations can be barred from using general treasury funds to pay for campaign advertisements.
The case may become a turning point for the court under Roberts. The chief justice and Alito, both George W. Bush appointees, so far have shied away from explicitly reversing precedents, refusing to go as far as fellow conservatives Scalia and Clarence Thomas.
In the campaign finance case, sparked by a 2008 documentary critical of then-presidential candidate Hillary Clinton, the court already held an hour-long argument that could have resolved the case on narrower grounds. A majority instead decided to schedule a second session to confront the court’s prior rulings governing corporate and union spending.
“They’ve teed it up for the bigger decision,” said Kenneth Gross, a campaign and election lawyer at Skadden Arps Slate Meagher & Flom LLP in Washington.
Controlling the Outcome
Roberts and Alito will probably control the case’s outcome. Scalia, Thomas and Justice Anthony Kennedy have said they would overrule both the 1990 decision, Austin v. Michigan Chamber of Commerce, and the part of the 2003 McConnell v. Federal Election Commission ruling that the court is reconsidering as well.
Both Roberts and Alito vowed during their Senate confirmation hearings to respect precedent. Like other nominees, they left open the possibility of overruling decisions that had proven unworkable or been undermined by later developments.
“It is a jolt to the legal system when you overrule a precedent,” Roberts said during his 2005 hearing.
Alito testified in 2006 that the court’s tradition of adhering to precedents “reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.”
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