January 16, 2009

Ted Olson's Vision of Campaign Finance Regulation: Unlimited Corporate Contributions in Candidate Elections and No Effective Disclosure

I recently commented on the surprising change of Citizens United from representation by Jim Bopp to representation by Ted Olson before the Supreme Court.

The brief has now been filed (h/t, Bob Bauer), and it is a bold and dangerous brief. It makes a frontal assault on Austin v. Michigan Chamber of Commerce, the 1990 Supreme Court case upholding the ability of the government to bar corporate spending in candidate elections. I've been warning that this precedent (among many others) is in danger before the Roberts Court, because the Chief Justice and Justice Alito take a much more deregulatory approach in the campaign finance area than Chief Justice Rehnquist and Justice O'Connor (both of whom were in the majority in Austin).

To be sure, there are narrower ways for Citizens United to win the case besides through an overruling of Austin. And so far the Roberts m.o. has been to chip away at campaign finance precedents rather than outright overrule them. But this may be just the opportunity the Justices have been looking for to take the next logical step in the deregulatory progression led by Justices Thomas, Scalia, and (to a somewhat lesser extent) Kennedy.

The Olson brief is just as bold in arguing for a strict scrutiny standard for some campaign disclosure laws in election, and an apparent exemption from disclosure for any election-related spending that lacks words of express advocacy. This approach is likely to be less successful, but the argument is one that cannot be ignored.

The brief moves the Citizens United case into the category of potential blockbusters.

Posted by Rick Hasen at January 16, 2009 08:48 AM