Let’s say that as a business leader, you want your company to “Lead Good” in more than its own operations. You want your company to “Lead Good” across the country — by spending corporate coin on ads to promote (or oppose) candidates in a federal election.
Right now, as the law stands, you can’t do it, not exactly. You have to limit campaign spending to the company’s PAC. And there’s no buying TV or radio ads to support or oppose a specific candidate in the final days leading up to an election. Those restrictions are part of the fabric of campaign-finance reform rules and laws in place since the early ’70s, including the so-called McCain-Feingold Act.
But corporate political advocates may soon get their chance… and this campaign-finance fabric may be ripped to shreds. The US Supreme Court last Monday, at the end of its term, announced that it wants a major campaign finance case re-argued — not on the relatively narrow issues of the case itself, but on a whopper of a question: whether the Court should overturn the basis for McCain-Feingold jurisprudence: the Supreme Court’s 1990 decision in Austin v. Michigan Chamber of Commerce, and its 2003 decision in McConnell v. FEC.
One key issue is whether corporations get free speech and first amendment rights like any other “person” (because the corporation is a kind of “person” under the law), or whether special rules should apply to corporate speech to avoid corruption and the undue influence of money on elections.
It’s rare that you find an issue that puts Common Cause supporters on one side (“Fight Corporate Domination!”) and ACLU-types on the other (“More Choices in the Marketplace of Ideas!”), but this is it. Another example: The Austin opinion was written by Thurgood Marshall, with former Chief Justice William Rehnquist among the Justices joining his majority.
The re-argument order suggests that there are five votes potentially ready to overturn the present scheme. If the cases are overturned, a lot of rules, regulations, and procedures that have become familiar, at the government and corporate level. will get scrapped. Could lead to a wild and wooly world of corporate campaign speech until the dust settles, with plenty of opportunities for CEOs to lead well or trip on their own feet.
In a dramatic and unusual move — and one that turns up the heat on the speed of the confirmation of Justice-Designate Sotomayor — the Court has set argument for September 9th, even before its next term formally begins on “the first Monday in October,” the 5th.