Pro Texana

The U.S. Supreme Court issued its long-awaited opinion in the Citizens United v.Federal Election Commission case. In that opinion, the Court overturned prior precedent in two cases, and held that the federal government’s absolute ban on corporations and labor unions using their funds in federal elections was an unconstitutional infringement on the freedom of speech guaranteed by the First Amendment.

In addition to the watershed holding allowing the use of corporate or union funds in independent campaign expenditures, the Court’s opinion raises a few interesting questions. One question is whether Congress could narrowly tailor a ban on contributions from entities that have a special relationship to the government, such as vendors or national banks. Another question is whether Chief Justice Roberts’ concurrence, in which he explains the court’s swerve away from precedent as follows, is a harbinger for possible future court actions:

[I]f adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.” (slip op., pp. 7-8).

So in this case, the Court overturned, with a 5-4 split, a portion of a prior 5-4 split in a 2003 opinion in McConnell v. Federal Election Commission.   The issues in both cases were “hotly contested.”  If the Court was willing, a mere seven years later, to overturn a 5-4 split on this issue, what does that portend for other 5-4 opinions, in matters such as abortion issues and quotas?  The Court is at an interesting crossroad, and its travels will be closely watched.

Note:  Texas Ethics Commission posted the following on its website on January 22, 2010 with regard to the opinion:

As we have stated in advisory opinions, we believe the Texas Legislature intended laws under our jurisdiction to prohibit political expenditures by corporations to the full extent allowed by the Constitution, as interpreted by theUnited States Supreme Court. In light of the recently issued United States Supreme Court ruling in Citizens United v. Federal Elections Commission, it is our position that corporations are allowed to make all types of direct campaign expenditures (referred to in Citizens United as independent expenditures) regulated by Title 15 of the Election Code. It is also our position that corporations are still prohibited from making political contributions unless specifically allowed by Title 15 of the Election Code.