Supreme Court analysis: in free speech and campaign finance debate, is precedent passe?


Former Dean Kagan made her debut before the Court on Wednesday

With Justices Anthony Kennedy ’61, Antonin Scalia ’60 and Clarence Thomas having explicitly urged reversal of two key campaign finance reform cases in previous opinions, all eyes were on Chief Justice John Roberts ’79 and Justice Alito at the re-argument of Citizens United v. Federal Election Commission

This critically important case pits the First Amendment rights of unions and corporations against over a century of campaign finance reforms going back to the 1907 Tillman Act. In granting re-argument of the case, which was initially before the Court last term, the parties were instructed to argue whether two precedents are ripe for reconsideration: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and McConnell v. Federal Election Commission, 540 U.S. 93 (2003). 

In the 1990 Austin decision – which Justice Scalia referred to in his sardonic dissent as an “Orwellian” limitation on corporate speech – the Court upheld Michigan’s ban on independent corporate expenditures supporting or opposing candidates. And just six years ago in McConnell, a majority of the high court – including Justices Stephen Breyer ’64, Ruth Bader Ginsburg and John Paul Stevens – reaffirmed the constitutionality of corporate campaign contribution limitations over the dissent of Justices Kennedy, Scalia and Thomas. 

In the re-argument of Citizens United, the justices generally filled their roles predictably: Justices Kennedy and Scalia offered no solace to fans of campaign finance reform; Justice Thomas (who has not spoken during oral argument since February 22, 2009) once again demonstrated his commitment not to contribute to the discussion and gave no indication of having changed his mind on corporate speech; in her first argument since repeating ad nauseam that she is committed to constitutional fidelity before the Senate Judiciary Committee, Justice Sonia Sotomayor indicated her continued commitment to stare decisis; and Justices Breyer, Ginsburg and Stevens seemed dedicated to their previous decisions upholding the constitutionality of Congress’s authority to regulate corporate electioneering. 

With the case apparently theirs to decide, the Chief Justice and Justice Alito relentlessly challenged advocates for existing precedent and legislation. Chief Justice Roberts was particularly keen to challenge the status quo, peppering Solicitor General and former Harvard Law dean Elena Kagan ’86 with pointed questions. Kagan, in her first case before the high court as Solicitor General, presented the FEC’s position in the case. The Chief Justice dominated Kagan’s time before the Court, rebuking her argument at each turn. At one point, Chief Justice Roberts criticized the FEC’s position favoring limitations on corporate electioneering as being “paternalistic” and reminiscent of “Big Brother.”

The Chief Justice was no less active during the argument of former Solicitor General Seth P. Waxman, representing Senators John McCain, Russ Feingold ’79 and other sponsors of the congressional acts to reform campaign finance. Though not as vociferous as his chief, Justice Alito’s questioning of the attorneys also appeared to reveal hostility towards Congress’s role in campaign finance regulation and related Supreme Court precedent. 

Observers are not unwarranted in noting that this argument was similar to that presented late last term in NAMUDNO v. Holder, 557 U.S. ___ (2009). There, the Court considered the constitutionality a key provision of the Voting Rights Act. Civil rights advocates felt a pit in their stomachs after oral arguments, where a majority of the Court subjected them to surprisingly antagonistic questioning. Despite fears for the worst, however, an eight-justice majority ruled narrowly to avert determining the constitutionality of the provision at issue. 

Here, too, the justices seemed to have their minds made up at oral argument, and the Court seemed prepared for conservative, ends-justified judicial activism. 

Standing in front of the Supreme Court after the fact, Senator McCain remarked that he was “disappointed in the extreme na’veté of some of the justices” about the influence of corporate money on politics and policy. A joint statement by Senators McCain and Feingold put a finer point on their criticisms: “During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent. If he casts the deciding vote to overrule Austin and McConnell, it would completely contradict that promise, and could have serious consequences for our democracy.” 

Chris Cassidy is the Assistant Director of Communications at the American Constitution Society in Washington, D.C. All opinions presented above are in no way reflective of ACS and are solely attributable to Cassidy, who is online at


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