Not many have noticed, but the U.S. Supreme Court is contemplating the mother of all acts of judicial activism. What started as a narrow case dealing with whether federal election laws should apply to a pay-per-view cable TV production called "Hillary: The Movie" has mushroomed into something much bigger, with profound implications for democracy and longstanding federal and state laws guarding against the buying of elections.
After hearing oral arguments in March on the case, Citizens United v. Federal Election Commission, the court's majority decided in late June to expand the scope of issues it will consider, and ordered new arguments in September over whether the court should consider overturning two key precedents involving corporate campaign spending established in a 1990 case, Austin v. Michigan Chamber of Commerce, and 2003's McConnell v. FEC.
The potential consequences are huge. At stake is the future of the 100-year-old wall separating corporation and state that offers at least some protection against the selling of our government. That wall was erected in the form of a 1907 federal law prohibiting corporations from using the capital amassed in their vast treasuries to influence elections as well as Wisconsin's century-old ban on corporate spending in state elections. (A similar federal law applying to labor unions was later enacted and Wisconsin's law is broad and applies to more than just business corporations, as we've noted before.) Also at risk are the new electioneering disclosure rules approved by the state Government Accountability Board but now on hold pending the outcome of the Citizens United case.
If the Supreme Court indeed tears down the old walls and forbids the building of any new ones, it will unleash a new torrent of special interest money into both federal and state elections. Swept away will be laws passed over a century ago by representatives of the people both in Congress and in our state Legislature here in Wisconsin, laws upheld not once but twice by the U.S. Supreme Court itself.
Talk about legislating from the bench.