SCOTUS versus SCOTUS - Macleans.ca

SCOTUS versus SCOTUS

"Austin is a dud and we're getting rid of it. Never happened. Off the books. Fuhgeddaboudit."

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The U.S. Supreme Court’s ruling in the Citizens United case on campaign-spending limits [PDF] is pretty extraordinary. The Court was presented with the problem that an earlier incarnation of itself had licensed the state suppression of corporate-funded political speech in the Austin v. Michigan Chamber of Commerce decision of 1990. When I heard word of Citizens United I was curious to see how the Court had tried to make Austin fit more comfortably into the great jigsaw puzzle of First Amendment jurisprudence. Such farcical exercises in providing for the uglier offspring of stare decisis are always entertaining.

But the Court didn’t try to make it fit. They just said “Austin is a dud and we’re getting rid of it. Never happened. Off the books. Fuhgeddaboudit.”

The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned— counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity.

The “undermined by experience” bit is the key cheat, really. What experience has demonstrated should already have been apparent in 1990. (As it was to Justices Kennedy and Scalia, who dissented from Austin and have clung to the bench long enough to taste its gore.) Ilya Somin contributes an interesting reaction to Citizens United at volokh.com.