The Supreme Court decided all but one of the cases on its docket before adjourning for the Term. The case held over for reargument is Citizens United v. FEC. That case involves the application of campaign finance rules to a movie that was highly critical of Hillary Clinton. I discussed this Term's oral argument here. In its order setting the case for reargument, the Court has added the following question presented: "For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?"
McConnell v. FEC was more or less gutted two Terms ago by the Court's subsequent decision in Wisconsin Right to Life v. FEC, holding that the key provision upheld on its face in McConnell was invalid as applied. The more interesting issue here is whether the Court will overrule Austin, which upheld campaign limits on expenditures from general corporate treasury funds. If the Court does so, then pairing that ruling with the line of cases that comes out of Abood v. Detroit Bd. of Educ., we will have the following truly remarkable rules:
1) (Anti-Austin): The Constitution forbids Congress from restricting the use of general corporate treasury funds for political activity;
2) (Abood): The Constitution itself forbids unions from using dues of non-union members of the bargaining unit for political activity.
In other words, the Constitution will then be read as protecting corporate speech but restricting labor union speech. In neither instance will there be a role for Congress or state legislatures. I suppose it will be possible to create a neutral-sounding set of rules that requires business interests to have unfettered influence over politics but forbids unions from doing the same. But it will be awfully hard to take those rules seriously. Who says the Constitution does not enact Herbert Spencer's Social Statics?
Posted by Mike Dorf