June 30, 2009 2:22PM # The Roberts Revolution to Come By [John Samples](https://www.cato.org/people/john-samples) --- SHARE As [I mentioned yesterday](https://www.cato.org/2009/06/29/citizens-united-case-to-be-reargued-in-supreme-court/), the U.S. Supreme Court surprised many people by ordering a reargument in the case of *Citizens United v. Federal Election Commission*. Specifically, the Court called for the parties to the case to address the question of overruling *Austin v. Michigan Chamber of Commerce*. The Court decided *Austin v. Michigan Chamber of Commerce* in 1989. The state of Michigan had prohibited corporations from spending money on electoral speech. In the case in question, the Chamber of Commerce wished to pay for an advertisement backing a candidate for the House of Representatives. The Chamber took this action on its own and not in tandem with the candidate or his party. Paying for the ad was a felony under Michigan law. A majority of the Court in 1989 said the Michigan law did not violate the First Amendment. However, the majority had a problem. Previous cases permitted limits on funding electoral speech only in pursuit of a compelling state interest: the prevention of quid pro quo corruption or its appearance. The Court had also ruled that independent spending by groups could not corrupt candidates. So the majority needed a novel rationale for approving Michigan’s suppression of speech. The majority concluded that speech funded by corporations would distort the democratic process and that the state could prohibits such outlays to prevent harms done by “immense wealth.” In other words, the *Austin* majority tried to redefine “corruption” as “inequality of influence.” That revision had its own set of problems. *Buckely v. Valeo,* the Ur-decision in campaign finance, had excluded equality as a compelling state interest justifying regulation of campaign finance. It is easy to see why the *Buckley* Court had rejected equality of influence as a reason for restricting political speech. Imagine Congress could prohibit speech that had “too much influence.” But how could that be determined? A majority in Congress would be tempted to suppress speech that threatened the power of that majority. Paradoxically, the equality rationale would strengthen those who already held power while vitiating representative government. The First Amendment tries to prevent that outcome. In last year’s decision in *Davis v. FEC*, the Court again rejected the equality rationale for campaign finance laws. More and more the *Austin* decision is looking like bad law. Justices Kennedy and Scalia, both current members of the Court, wrote dissents in *Austin*. Justice Thomas has called for *Austin* to be overruled in other contexts. Neither Justices Roberts nor Alito is likely to vote to uphold *Austin* (or the relevant parts of *McConnell v. FEC* for that matter). But it would seem that either or both of them were unwilling to strike down a precedent without a formal hearing. That hearing will come on September 9 with a decision expected by Thanksgiving. Almost six years after the Court utterly refused to defend free speech in *McConnell v. FEC*, the Roberts Court may be ready to vindicate the First Amendment against its accusers in Congress and elsewhere. ##### Related Tags [Government and Politics](https://www.cato.org/government-politics), [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).