Earlier this year, the five-judge majority held that corporations have the same right as natural citizens to spend money to expressly advocate the election or defeat of political candidates. To do that, the majority took the extraordinary steps of overruling precedent, disregarding the issues developed in the courts below, ignoring the requests of all of the parties to the litigation (no party asked that the ban on corporate campaign expenditures be declared unconstitutional) and conducting a special hearing on the validity of the federal ban.
Even if the majority’s legal reasoning on the constitutionality of the corporate ban is plausible, its act of judicial activism is shocking. This majority of the court could easily have given the appellants the relief that they requested without insisting on such a hearing or ruling, or could easily have fashioned relief in 2010 that allowed Congress an ample opportunity to act. Instead, the justices acted in a manner that dramatically changed campaign finance rules in time for the 2010 election cycle.
The predictable consequences are now taking place:
Congressional efforts to mitigate the effect of the majority’s decision were easily blocked by Republicans in the U.S. Senate. As a result, the election system has been opened to large amounts of corporate cash that can be raised and used while leaving the corporations anonymous. Make no mistake, the ruling had this effect and corporate cash is flowing.