In yesterday's Capitol Times, Mike McCabe of the Wisconsin Democracy Campaign sounds like he expects the Supreme Court to overturn McCain-Feingold's restrictions on grassroots lobbying immediately prior to a federal election. I hope his worst fears are realized.
But my job this morning is to fisk his piece. He's managed to pack three huge conceptual errors in one short column.
First, the restrictions at issue in Wisconsin Right to Life v. FEC cannot accurately be described as simply keeping "corporate" money out of politics.
Wisconsin Right to Life is a corporation (albeit not the big bad for profit type that McCabe is referring to) but its funds come from a variety of donors in varying amounts - most of whom, I suspect, are individual persons. McCain-Feingold wants to restrict what these people can give to facilitate the communication of an idea that they care about. It wants to require that their contribution be publicly disclosed notwithstanding the reluctance of many to give to a controversial cause if their involvement would become known to their employers, neighbors, etc. In other contexts, courts have recognized that forced disclosure can burden associational rights.
McCabe thinks that this is justified by what has been and, unless we repeal the First Amendment, always will be a futile attempt to keep "big money" out of politics. Not surprisingly, he wants to mischaracterize the cost.
Second, McCabe thinks that strict constructionist judges are somehow bound to respect all precedent and that this issue was decided in the McConnell case.
Putting aside the fact that WRTL is making an "as applied" challenge that wasn't present in McConnell, McCabe's characterization of "strict constructionist" (or, as others might put it, "textualist" or "originalist" ) jurists as "precedent judges" isn't quite right.
The considerations of judicial modesty and predictability that inform these interpretive theories probably do imply a greater respect for precedent, but prior decisions that have gotten the text or the original intent wrong are certainly subject to reversal. Nothing in these theories requires that error, once made, must be repeated in perpetuity.
Finally, McCabe indulges in the left's curious demonization of the corporate form and trots out its beta noire, the Supreme Court's 1886 decision in Santa Clara County v. Pacific Railway Company. According to McCabe, a "footnote" by a single Justice in this case held that corporations were "persons" under the 14th Amendment, presumably reversing all sorts of precedent that limited their nefarious designs.
We can put aside the fact that Santa Clara County has no such footnote (McCabe means to refer to a reported pronouncement before oral argument that the justices all agreed that a corporation was a "person" so no argument on that point was necessary) or "holding" (the court ducked the constitutional issues). He is certainly right that corporations are "persons" under the 14th Amendment.
McCabe seems to think that this tore down a "wall of separation" between "democracy" and an "aristocracy of monied corporations." That's a stretch. It was legislation in the various states that created corporations as juridical persons and the Court had long ago recognized constitutional protection for corporate charters.
In any event, whether or not these entitites were "persons" under the 14th Amendment could hardly have been answered before the 14th Amendment was ratified in 1868. There is ample legislative history and sound policy supporting the view that the choice of a person or group of people to organize in a particular form (with all its advantages and disadvantages) ought not to result in the forfeit of constitutional protections. Would McCabe believe that Wisconsin Right to Life or, for that matter, the Wisconsin Democracy Campaign ought not have any first amendment protection?