Could the Supreme Court overrule 100 years of campaign finance precedent?
No. The 100-year-precedent argument, advanced by Fred Wertheimer and others, doesn’t fly because the Tillman Act of 1907 banned corporate direct contributions, not at issue in this case (as Justices Samuel Alito and Anthony Kennedy noted). Independent corporate and union expenditures were not banned until the 1947 Taft-Hartley Act, but this was rarely enforced prior to the 1974 FECA Amendments. The Court did not uphold such a ban until Austin in 1990. Chief Justice Roberts also rebuked Waxman on this point, citing a brief filed by campaign finance scholars and drafted by CCP board member Allison Hayward. Also, the Court held in Austin that “corporate expenditures have ‘distorting and corrosive effects’ on elections.” However, Solicitor General Elena Kagan abandoned that rationale and never mentioned it in the government’s merit brief on re-argument, as noted reformer Prof. Richard Hasen has noted. The government created a new rationale, alleging that independent expenditures pose “quid
