Blog: On campaign finance, there’s no doubting Thomas

Tuesday, January 12, 2010

Many Supreme Court observers are surprised that the justices still have not issued their long-awaited opinion in Citizens United v. FEC, the “Hillary movie” case, a decision that could change dramatically the landscape of campaign-finance law. Speculation abounds that the Court — which has heard arguments in the case twice — is struggling with various concurrences and dissents over various aspects.

However, there is no doubt how Justice Clarence Thomas will vote in the case. He will vote to strike down restrictions on campaign finance, including perhaps overruling Austin v. Michigan Chamber of Commerce (1990), which upheld a Michigan law limited corporate spending in political campaigns, and McConnell v. Federal Election Commission (2003), which upheld the vast majority of the behemoth federal law known as the Campaign Finance Reform Act of 2002.

Thomas is probably the harshest critic of the Court’s jurisprudence surrounding campaign finance. He views restrictions on political contributions and spending as direct infringements on political speech. He famously referred to the Bipartisan Campaign Reform Act as “the most significant abridgment of the freedoms of speech and association since the Civil War” in his separate opinion in McConnell.

In multiple opinions, Thomas has called for the overruling of the Court’s ruling in Buckley v. Valeo (1976), which upheld restrictions on political contributions but not expenditures.

To Thomas, restrictions on political contributions and spending violate the First Amendment. He has said repeatedly that all campaign-finance laws should be subject to strict scrutiny, the most rigorous form of judicial review. If Thomas has his way, the landscape of campaign-finance law will change a great deal, and soon.