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Seeking to Have McConnell v. FEC Overruled

For 60 years (since the Taft-Hartley Act of 1947), federal law has forbidden for-profit and some nonprofit corporations from using their treasury funds to pay for election-related advertising — they are required instead to use separate, segregated funds that are raised for that particular purpose (the so-called “PAC” requirement). (Most nonprofit corporations are exempt from the PAC requirement, so long as they do not accept donations from for-profit corporations and unions.)

The Court upheld an analogous state-law corporate-PAC requirement in the 1990 case of Ausin v. Michigan Chamber of Commerce, and three Terms ago, in McConnell v. FEC, the Court by a 5-4 vote upheld the federal PAC requirement, too — over a dissent by Justice Kennedy arguing that Austin should be overruled.

The Appellee in the pending Wisconsin Right to Life case (Nos. 06-969, 06-970) has now informed the Court that it will ask the Court to “reconsider” the corporate-PAC holding of McConnell (and, presumably, Austin). The head’s-up from Wisconsin Right to Life comes in a motion for extra briefing pages. The Chief Justice has granted the Appellees 70 pages for briefing.

(Disclosure: I am counsel on a brief for amici Professors Richard Briffault and Rick Hasen arguing for the constitutionality of the six-decade-old corporate PAC requirement. In that brief, among other things, we explain that Appellee Wisconsin Right to Life, a nonprofit corporation, would not be subject to the PAC requirement at all but for the fact that it accepts significant funding from for-profit corporations.)

UPDATE: Rick Hasen explains here why he doesn’t think the Court should or will take up the invitation to reconsider McConnell and Austin.