Corporate Accountability

Roberts Delivers ‘Jolt’ in Overturning Campaign-Finance Rulings


(Bloomberg) — In 2005 John Roberts, then the nominee to be U.S. chief justice, told a Senate panel, “It is a jolt to the legal system when you overrule a precedent.”

Roberts did exactly that yesterday, casting a pivotal vote as the Supreme Court voided two precedents and struck down decades-old restrictions on corporate campaign spending.

The ruling marked the most assertive step yet for the Roberts-led court, showing a new willingness to overturn past decisions. In past election-law cases, Roberts and fellow George W. Bush appointee Samuel Alito opted for more limited rulings that trimmed precedents rather than reversing them directly.

“The decision shows that on core constitutional questions, which could also extend for example to abortion and religion, the court’s more conservative members are willing to overrule precedent they think is fundamentally wrong,” said Tom Goldstein, a Washington lawyer at Akin Gump Strauss Hauer & Feld LLP and the creator of the Scotusblog Web site, which tracks the court.

The 5-4 ruling freed corporations, labor unions and advocacy groups to use general treasury funds to buy advertisements that explicitly try to sway voters. The majority said restrictions on corporate spending violated the Constitution’s free-speech guarantee.

The ruling went beyond the circumstances in the case before the justices, a dispute over a documentary film attacking then- presidential candidate Hillary Clinton. The court overturned a 1990 Supreme Court decision that said corporations could be barred from using general treasury funds to pay for political advertisements.

Law Overturned

The majority also reversed part of a 2003 decision upholding the 2002 overhaul of federal campaign finance regulations. That law barred corporate and union treasury spending in the weeks leading up to an election if the advertisements mentioned a federal candidate. The court yesterday invalidated that so-called electioneering restriction.

Roberts and Alito took a different approach toward the same provision less than three years ago, voting to narrow it so that it applied only to ads obviously intended to urge a “vote for or against a specific candidate.”

Roberts said he had to go further in the latest case because there was no “valid narrower ground” for resolving the matter. In a 14-page opinion for himself and Alito, Roberts said the court correctly went beyond the arguments made by Citizens United in ruling for the Washington-based political advocacy corporation behind the Clinton film.

 Narrower Grounds

Citizens United originally asked to be exempted from the electioneering provision on statutory and constitutional grounds that wouldn’t have affected for-profit companies. The group urged a broader decision after the court ordered a second argument of the case to consider wiping out corporate spending restrictions.

Roberts drew a rebuke from dissenting justice John Paul Stevens on that point. “There were principled, narrower paths that a court that was serious about judicial restraint could have taken,” Stevens wrote.

Roberts, 54, said there are limits to the principle that the court generally won’t disturb its settled precedents. He said that principle, known as stare decisis, carries less weight when a precedent is at odds with other earlier court decisions.

Roberts said that even the Obama administration’s top Supreme Court lawyer, Elena Kagan, had disavowed the reasoning used by the court in 1990. The justices then said that corporate-spending limits were justified to offset the “corrosive and distorting effects of immense aggregations of wealth.”

Political Positions

 Kagan instead argued that restrictions on corporate spending protect investors who disagree with a company’s political positions.

Roberts and Alito “are giving more attention or as much attention to stare decisis as any justice,” said Michael Carvin, a lawyer at Jones Day in Washington. “But they are not going to make the law a muddle by extending and building upon erroneous precedent that conflicts” with other decisions.

 In other areas of law, Roberts and Alito have shown reluctance to overturn precedents. In a 2007 opinion that upheld a federal ban on what critics call partial-birth abortion, Roberts and Alito stopped short of discarding a 2000 ruling that invalidated a similar state anti-abortion law.

And last year, a Roberts-led majority avoided a decision that might have struck down a central part of the Voting Rights Act and several precedents. Instead, the court interpreted the law to let more jurisdictions change election procedures and district lines without federal approval.

 Swing Vote

One difference with those cases may have been that Justice Anthony Kennedy, not Roberts or Alito, loomed as the court’s swing vote. By contrast, Kennedy had already said he would overturn the campaign-finance precedents, meaning Roberts and Alito controlled the outcome of yesterday’s ruling.

Being assured of a majority on the court, rather than legal principles, may be driving Roberts’s approach toward precedent, said Doug Kendall, president of the Constitutional Accountability Center in Washington, which pushes for environmental safeguards and civil rights.

“Despite all their professions of judicial humility and restraint, Chief Justice Roberts and the court’s five-justice majority showed in this case that they are ready and willing to overrule past decisions they don’t like, as soon as they have the votes,” Kendall said.


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