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Wednesday Is Campaign Finance Day at the Supreme Court
Written by Jeremy Jacobs on September 08, 2009, 02:24 PM
All you Supreme Court junkies buckle in: Wednesday is going to be a wild ride in the high court.

The Court will cut its recess a month short on Wednesday to hear a re-argument of a campaign finance case that could fundamentally reshape how elections are conducted. At the heart of the case is the central issue of campaign finance laws: Do corporations have different rights than individuals?

The case, Citizens United v. Federal Election Commission, centers on "Hillary: The Movie," a scathing criticism of Hillary Clinton released during last year’s presidential campaign. Citizens United, the group behind the movie—which most mainstream commentators considered a pure political hit piece—sought to distribute the film on a video on demand service. The FEC intervened, saying it amounted to a long political ad and, therefore, violated campaign finance laws—such as McCain-Feingold—that limit the amount of money corporations can spend in ads advocating either for or against political candidates.

The FEC won and a lower court ruled that the film unlawfully sought to "to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her."
 
What initially appeared to be a narrow case focusing on one movie now appears to have much broader implications and has court watchers buzzing. The Supreme Court first heard the case in March but opted to rehear arguments—something that is rare. Combine that with the justices cutting their recess a month short to address the case and some are speculating that the justices are preparing a ruling that could fundamentally reshape the role of corporations in elections.

The court’s eventual decision could overturn two previous rulings: A 1990 ruling in Austin v. Michigan Chamber of Commerce that upheld restrictions on corporate spending in elections and 2003’s McConnell v. FEC, the ruling that upheld McCain-Feingold.

One big reason for the speculation is the current make up of the court. In the 2003 5-to-4 ruling that upheld McCain-Feingold, three current justices signed the minority opinion that would have struck down the corporate restrictions. Among them was Justice Anthony Kennedy, who is considered the swing vote in the current court.

Citizens United also appears to be ready to argue the case on broad terms. Theodore Olson, President George W. Bush's solicitor general who is arguing the case on the group's behalf, penned an op-ed in the Wall Street Journal on Tuesday that frames the issue as a question of corporate rights versus individual rights.

"Is outlawing political speech based on the identity of the speaker compatible with the First Amendment?" he asks. "Tomorrow, the Supreme Court will hear arguments to determine the answer to this question."

Olson goes on to argue that Congress acted without proof that corporate money unfairly influences elections. "Put simply, the government's theory is that because wealthy corporations and unions might speak too much during elections, all of them must be silenced," he writes.

Here are few things to watch for in Wednesday's arguments:

How do books figure into this? In the hearing in March, the lawyer representing the government argued—perhaps regretfully—that the precedent would also allow the government to ban corporations from distributing books if they called for the election or defeat of a political candidate. As New York Times Supreme Court reporter Adam Liptak notes, that position appeared "to astound" several justices and there were gasps in the courtroom. "That's pretty incredible," Justice Samuel Alito said in response.

Odd bedfellows. The case has divided civil liberties and civil rights groups. While most liberal groups continue to oppose Citizens United and the role of corporate money in elections, others—most notably the American Civil Liberties Union—are supporting the conservative advocacy group. Their argument is that no restrictions should be placed on the First Amendment right to free speech. That puts the ACLU on the same side as the National Rifle Association. Also siding with Citizens United are Floyd Abrams, the most prominent contemporary First Amendment lawyer, and the Reporters Committee for Freedom of the Press, which has filed two amicus briefs on the case.

On the other hand, Olson, who is arguing against campaign finance laws, previously argued in their favor as Bush's solicitor general.

New legal stars take the big stage. Wednesday's arguments will be Justice Sonia Sotomayor's debut on the court. Many will watch for indications of what type of questioner she will be. The arguments will also be Solicitor General Elena Kagan’s first ever in front of the Supreme Court. Kagan, the former Harvard Law dean, was considered to be on President Obama's shortlist when Justice David Souter retired and could be his next nominee if another justice steps down.

Jeremy P. Jacobs is a staff writer at Politics. He can be reached at jjacobs@politicsmagazine.com

Blog Comments

Don Nordeen
This is much broader than a free speech issue. Corporations, unions, organizations — more broadly non-citizen legal entities — are established by the legislative process. They are creatures of the legislature, not of the Constitution. Their rights and limitations can be included in the laws that charter the non-citizen legal entities. Non-citizen legal entities are not allowed to vote. They don't have a designated Representative, nor two Senators. Any constitutional guarantees are indirect in the sense that laws shall not violate the Constitution. People have constitutional guarantees, not non-citizen legal entities. The Bill of Rights is for people not non-citizen legal entities. An important exception is the press. Allowing non-citizen legal entities — many of which have large resources and funds that could be allocated to ballot and election issues — decreases the influence of each citizen (who does have constitutional guarantees). Granting non-citizen legal entities unrestricted rights of free speech which includes unlimited spending, waters down the rights of citizens. Of course, non-citizen legal entities should be able to act for a group of citizens as part of freedom of association. That includes advocacy in ballot and election issues, but only where the funds are voluntarily provided by citizens for the political purposes. PACs are the obvious example which rely solely on voluntary donations from people for the political purposes defined by the PAC. Nowhere is this erosion of individual rights more obvious than in Washington. The special interests (non-citizen legal entities) have the money for lobbyists, contributions, organizing and conducting conferences, etc. that are out of reach for the individual voter. How many citizens have lobbyists? But draw the line when it comes to ballot and election issues. However, non-citizen legal entities should be able to provide information to the legislation, but without any associated money. The special interest influence is obvious in the debate over health care reform. The debate and issues in Washington are dominated by the special issues. Individual citizens have very little voice. But citizens have made their voices heard in the town hall meetings, in which the special interests (non-citizen legal entities) have little or no status or standing. Shouldn't Washington be more like the town hall meetings? Limiting the free speech of the non-citizen legal entities concerning ballot and election issues is a step in that direction.

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