In a rare September hearing, the Supreme Court appeared poised last week to strike restrictions on corporate spending in elections, with the court's conservative majority indicating they had concerns over whether the rules violated the First Amendment.
The justices were rehearing the case of Citizens United v. Federal Election Commission. The case centers on a conservative group's challenge of federal restrictions that prevented wider distribution of an anti-Hillary Rodham Clinton movie during her run for the Democratic presidential nomination in 2008.
The Federal Election Commission said the movie was subject to a 2002 law barring TV ads financed with corporate and labor union money close to an election. Citizens United contended the FEC's move violated its rights of free political speech.
The court will consider two previous cases when making its decision. In the 1990 case Austin v. Michigan Chamber of Commerce, it upheld a state law that said corporations could be barred from spending their profits to urge a candidate's election or defeat.
A 2003 ruling upheld the Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold law. The 5-4 ruling held that Congress may limit corporate spending on advertising that mentions a candidate shortly before an election, even if the ad does not explicitly support or oppose that person.
Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas dissented from the 2003 ruling, and have said Austin should be overturned. They are likely to be joined by Chief Justice John Roberts and Justice Samuel Alito in how they decide the case now before them.
Scalia made the most compelling argument for ruling in Citizens United's favor: that the current laws are too broad and often curtail the abilities of individuals who are the only shareholders in a corporation from contributing to political campaigns.
Still, it is unsettling for conservative justices to put forward arguments that appear to lead toward the overturning of precedent, a move that brings the court dangerously close to making new law. An act, of course, that conservatives have for decades accused liberal judges of pursuing.
Before the court decides to radically turn back laws that limit the influence of labor and corporate money on elections, it should seriously consider adopting an alternative put forth in an amicus brief by the National Rifle Association.
The NRA's proposal would allow nonprofit corporations to create accounts that would be comprised of contributions made by individuals. Congress has provided for such a fallback system if the current provision is struck down. The NRA's position is that such a plan would allow for clearer distinction between a situation when individuals are funding political speech as opposed to a corporation.
Indeed, such a plan would answer the argument put forward by some of the court's liberal justices that free speech rights belong to individuals, not corporations.
"A corporation, after all, is not endowed by its creator with inalienable rights," Justice Ruth Bader Ginsburg said.
So, while former Solicitor General Theodore Olson might be correct that current laws "smothered" First Amendment rights and "criminalized" free speech, the court should consider the NRA alternative before striking two of its precedents and defying Congress on corporate restrictions that date from the beginning of the 20th century.