The Tangled Web We’ve Woven: What Weight to Give Precedent in Citizens United?

The Supreme Court has by now voted on Citizens United v. FEC and the justices should be writing their opinions.  After a special oral argument last week, most observers were predicting a win for Citizens United in their battle to air “Hillary: The Movie,” (or more realistically, for Citizens United’s future political speech efforts.)  The question will be how large the win is – will the Court overrule the a pair of recent precedents, Austin v. Michigan Chamber of Commerce and McConnell v. FEC, which themselves twisted and distorted the Court’s prior decision in Buckley v. Valeo, while claiming to leave Buckley intact (a sort of “faux judicial restraint)?  Or will it decide the case on more narrow grounds?

In this article from the October 2008 issue of Engage, journal of the Federalist Society’s Practice Groups, CCP Academic Advisor and George Mason University Law Professor Allison Hayward  argues that a “principled court” can and should “repair the mistakes of the past.” 

She argues, in part:

Unfortunately, the present blend of court-crafted doctrine and Congress-crafted statute is complicated and irrational. Thus, attempting to scrutinize future cases within existing precedent will not help decrease the burden this conglomeration imposes on political activity. That complexity alone may raise a deeper legal question. Can complexity itself pose an unconstitutional burden on speech, association, or other protected activity? The inscrutability of the law has already provided an effective defense —the recent prosecution of a high profile campaign crime failed when the defendant persuaded his jury he could not have known that his activity was criminal.

Now might be a good moment for justices to acknowledge the law’s general failure to articulate clear standards that serve a rational state interest, due in part to the Court’s decisions, and its substantial burden on communities and activists.

Whatever appealing qualities might attach to a justice’s respect for precedent and restraint in ordinary circumstances, none are found here. It is vitally important that future justices appreciate the position the Court is in, and the power the Court has to improve the law. Rather than decry judicial activism, principled Court watchers need to allow for space for future justices to repair the mistakes of the past.

In campaign finance, once we acknowledge the conflict of interest with which Congress regulates politics, we should embrace the Court’s close review of the laws politicians write to govern their own elections. In the end, Justice Burger, dissenting in Buckley v. Valeo, was right. Campaign finance regulation of any kind should be subject to strict scrutiny. The obvious favoritism incumbents bring to the process cries out for some other arbitrator (the Court) to evaluate closely their efforts. But in so doing, the Court should remember that ordinary Americans, not lawyers or consultants, must be able to understand the rules that result from the Court’s analysis.

The Center for Competitive Politics is now the Institute for Free Speech.