Friday, September 18, 2009

Pure Overreach

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With a little-noticed order last week, we fear the Supreme Court has set the stage for dismantling the longstanding ban on corporate spending in elections for president and Congress. If those restrictions are overturned, it would be a disaster for democracy.

The justices considered a case this term about an election-year documentary made by opponents of Hillary Clinton. The issue was whether the film could air in the 60 days before an election, a period during which the McCain-Feingold campaign finance law imposes particularly strict limits on election-related communication.

The case would have been easy to resolve on narrow grounds. Instead, the court declared that on Sept. 9 it would hear arguments on whether Austin v. Michigan Chamber of Commerce — an important campaign finance precedent from 1990 — and parts of a more recent case should be overruled.

Austin upheld a law prohibiting corporations from spending their money to elect particular candidates. The Supreme Court rightly pointed out that corporations, as opposed to individuals, benefit from special laws, including tax advantages, that assist them in accumulating large amounts of money. The ban on their spending is needed to prevent the political process from being overwhelmed and corrupted. The Supreme Court has upheld the restriction repeatedly.

The court’s new order is also deeply troubling procedurally. The question of overruling Austin was so much not a part of the Hillary Clinton film case that the parties now have to brief it — submit fully researched arguments to the court — for the first time. This is pure judicial overreach.

The feverish pace is also disturbing. The court has ordered that the arguments take place even before the new term starts. The parties, and interested citizens who want to submit friend-of-the-court briefs, will have only a short time to parse enormously complicated issues.

The most troubling part of the court’s action is the brave new world of politics it could usher in. Auto companies that receive multibillion-dollar bailouts could spend vast sums to re-elect the same officials who hand them the money. If Exxon Mobil or Wal-Mart wants something from a member of Congress, it could threaten to spend as much as it takes to defeat him or her in the next election.

It is a nightmare vision, but based on how the justices have come down in past cases, there may well be five votes for it to prevail.

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