Gavel Grab

The major campaign finance case argued before the Supreme Court today seems to float in an “alternate universe” from that occupied by justices reaching a historic conclusion in Caperton v. Massey three months ago, contends Bert Brandenburg,  executive director of Justice at Stake Campaign.

Brandenburg’s commentary is posted on the blog of the American Constitution Society for Law and Policy and is headlined “The Perils of Free Corporate Spending.”

Brandenburg juxtaposes what he calls the “gritty facts” of Caperton, where a coal company executive spent $3 million to elect a West Virginia Supreme Court judge, and  leading arguments offered today in Citizens United v. Federal Election Commission.

The “deep pockets hovering around Citizens United” and advocating against government limits on corporate spending for political candidates argue, Brandenburg writes, that corporate spending has no undue or distorting impact on elections; that requirements to raise money through political action committees are an unfair burden; and that any restriction on campaign speech violates the First Amendment.

Then Brandenburg walks a reader through the real world “fact pattern” that led to the Caperton decision. The high court found the Constitution puts limits on how much special interests can tilt the scales of justice. It required judges to step aside in certain cases involving their supporters.

Lawyer Theodore B. Olson, who argued on behalf of Citizens United today, represented appellant Hugh Caperton in the earlier case. Brandenburg points out that Olson said in representing Caperton,  “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.”

If the ban on spending from corporate treasuries for political candidates is struck down, Brandenburg predicts, “similar state laws will be next.” He concludes:

“If anyone wonders whether that will have a real-world effect, they should look at Caperton once more and ask this: What if Don Blankenship, the coal executive with litigation in West Virginia, hadn’t been forced to spend from his own pocket? What if he could have just cut a company check to underwrite an election? And what if an unwise ruling makes that the norm, not the exception?”

To learn more about the Citizens United case, you can read a posting in GravelGrab today. You also can read the transcript of today’s oral arguments at the Supreme Court by clicking here.