The way conservatives tell it, President Obama’s White House tenure has resulted in a near-death experience for federalism. A tidal wave of Obama-inspired federal regulation has turned autonomous states into captives of the national bureaucracy, a perversion, they say, of the Constitution and the Founders’ vision of the “laboratories of democracy.” States’ rights, then, are of paramount concern for conservatives—except, it turns out, when the discussion turns to campaign finance and another principle near and dear to their hearts: free speech. As a case before the Supreme Court this month demonstrates, some on the Right might profess to love the 10th Amendment, but they’re willing to push it aside to embrace the First—at least in this context. The case, American Tradition Partnership, Inc. v. Bullock, centers on a century-old Montana law that prohibits corporations from spending money on political campaigns. The U.S. Supreme Court appeared to have rendered the state law unconstitutional in 2010 in its ruling in Citizens United v. Federal Election Commission that allowed unlimited corporate and union spending on elections; but the Montana Supreme Court unexpectedly upheld the ban last year.
The state judges contended that Citizens United does not apply to Montana’s anti-corruption measure—arguing, in effect, that the state should be able to determine how to regulate campaigns within its borders. Supporters of the state court’s decision, according to Rick Hasen, a campaign finance expert at the University of California (Irvine) School of Law, have framed it as a defense of federalism, a tactic calibrated to appeal to the Supreme Court’s majority conservative bloc. Typically, conservatives rally around that type of argument, in determining how to educate the nation’s children, say, or to provide health insurance for the needy. But in this case, they appear united in their conviction that the Montana court was dead wrong. “I’m a big believer in the 10th Amendment,” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation and a former member of the Federal Election Commission. “But the power and sovereignty of state government is limited by the Bill of Rights, just like the federal government’s is.”
Right-leaning legal analysts argue that the campaign finance case is inherently different from other issues that typically elicit cries of states’ rights. Although conservatives contend that state autonomy should trump federal rule, they also say that the rights of citizens should supersede both. “Could a state like Massachusetts have an individual [insurance] mandate? That’s a question not of rights under the Bill of Rights but rather of government powers,” said Brad Smith, chairman of the Center for Competitive Politics and a former FEC chairman. “That’s a fundamental difference.”
Full Article: The Final Frontier – Alex Roarty – NationalJournal.com.