Campaign Law - Part 2

In June 2008, the section of the Bipartisan Campaign Reform Act (BCRA) of 2002 known as the "millionaire's amendment" was overturned by the Supreme Court of the United States (SCOTUS) in Davis v. Federal Election Commission (FEC). This provision attempted to "equalize" campaigns by providing that the legal limit on contributions would increase for a candidate who was substantially outspent by an opposing candidate using personal wealth. “Questions of honor are raised as much by appearances as by reality in politics and because they incite public distrust, they need to be addressed no less directly than we would address evidence of expressly illegal corruption,' John McCain wrote in 2002. During 2008 McCain in his bid for the presidency consistently voiced concern over campaign practices and their funding. “By the time I became a leading advocate of campaign finance reform, I had come to appreciate that the public's suspicions were not always mistaken. Money does buy access in Washington and access increases influence that often results in benefiting the few at the expense of the many." Although docketed on August 18, 2008, SCOTUS didn’t hear oral arguments until March 2009 in Citizens United v. FEC case regarding whether or not a political documentary (critical of Hillary Clinton) could be considered a political ad. In a 5–4 decision, the Court held that portions of BCRA §203 violated the First Amendment. SCOTUS reversed, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from spending on "electioneering communications". The decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. FEC (2003). The Court did uphold requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties which remain illegal in races for federal office. By January 2010 at least 38 states and the federal government required disclosure for all or some independent expenditures or electioneering communications, regardless of whether the speaker is a corporation. On January 21, 2010 SCOTUS in (5-4 vote) Citizens United v. FEC struck sections of BCRA of 2002 down which limited activity of corporations, saying, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." (The minority said the court was making a mistake treating the voices of corporations as similar to those of people.) Citizens United made it legal for corporations and unions to spend from their general treasuries to finance independent expenditures but did not alter the prohibition on direct corporate or union contributions to federal campaigns; those are still prohibited. Such organizations seeking to contribute to federal candidate campaigns must still rely on traditional PACs for that purpose. However, they may spend money independently of campaigns without forming a PAC. The Court did uphold the requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). President Obama expressed his concern over SCOTUS' decision during his January 27, 2010 State of the Union Address saying, "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems." He also called the decision, "a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” In the wake of the decision Republican Senator John McCain said "there's going to be, over time, a backlash ... when you see the amounts of union and corporate money that's going to go into political campaigns".

The Supreme Court was created in 1789 by Article III of the US Constitution, which stipulates that the "judicial Power of the United States, shall be vested in one supreme Court" together with any lower courts Congress may establish. Congress organized the Court that year with the passage of the Judiciary Act of 1789. It specified the Court's original and appellate jurisdiction, created 13 judicial districts and fixed the number of justices at 6 (one Chief Justice and 5 Associate Justices). Since then, historically in response to the country's expansion in size, Congress has altered its size; membership decreased to 5 in 1801, increased to 7 members in 1807, to 9 in 1837, to 10 in 1863, was reduced to 7 in 1866 and in 1869 Congress set the Court's size to 9 members where it has remained since. The current 9 members are: Antonin Scalia, appointed by Reagan in 1986, Anthony Kennedy appointed by Reagan in 1988, Clarence Thomas, appointed by GHW Bush in 1991, Ruth Bader Ginsburg, appointed by Clinton in 1993, Stephen Breyer, appointed by Clinton in 1994, John G. Roberts, appointed by GW Bush in 2005, Samuel Alito, appointed by GW Bush in 2006, Sonia Sotomayor, appointed by Obama in 2009, and Elena Kagan, appointed by Obama in 2010. I now understand why Republicans were angry with Justice Kennedy supporting ObamaCare (he was a Republican appointee) and why many of the Court’s rulings have favored corporations (5 of the 9 are Republican appointees).