By Reid Wilson - 09/07/09 10:29 PM EDT
The Supreme Court on Wednesday will hear arguments from campaign finance reform advocates and opponents in a case many insiders say will be the most significant decision in more than 35 years.
The case the court will hear, Citizens United v. Federal Election Commission, has the potential to overturn key elements of campaign finance law that prevent corporate spending on elections, a move that would open the door to millions of dollars that could not be spent previously.
That decision "would have a devastating impact for citizens and for the democratic process," said Fred Wertheimer, president of Democracy 21, a pro-reform group. "It would unleash the immense wealth of corporations on Washington government decisionmaking and open the door to enormous amounts to be spent by corporations to buy influence with federal officeholders."
The case started simply enough; late last term, the court heard arguments over whether Citizens United, the conservative nonprofit organization, could run a documentary attacking former presidential candidate Hillary Clinton. The documentary was partially funded by corporate contributions, which the Federal Election Commission (FEC) said was a violation of campaign law.
Federal campaign law also prohibits outside groups from running advertisements in the final 30 days before a primary election and 60 days before a general, and the FEC asserted the documentary violated that provision as well.
But instead of deciding narrowly on the documentary itself, as Chief Justice John Roberts has urged his colleagues in the past, the court declined to rule on the case. Instead, on Wednesday, the court will hear arguments over whether it should re-evaluate two previously decided cases.
One, McConnell v. FEC, tested whether outside groups could run ads within the primary- or general-election window. The other, Austin v. Michigan Chamber of Commerce, upheld a century-old restriction on corporate money in political campaigns.
Ordering new arguments on a case is rare, as is a special session to be held before the traditional opening of the court's term in October. The court has also extended the time allotted for arguments from 60 minutes to 80, in order to allow congressional sponsors of campaign finance laws, including attorneys for Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.), to make their case.
The unusual circumstances, election law experts say, could lead to an unprecedented change in the way campaigns are run.
"For more than a century, Congress has banned corporate expenditures in connection with federal elections, and the Supreme Court has indicated an interest in having a case like that reheard," said Marc Elias, the Democratic election lawyer at Perkins Coie.
For those who see campaign spending as a logical extension of the First Amendment guarantee for free speech, the case presents opportunities they could not have guessed at, thanks largely to Roberts and Associate Justice Samuel Alito, President George W. Bush's two appointees to the high court.
"The Roberts court, in recent years taking these cases, has really signaled that the First Amendment is no longer a speed bump on the way to stricter campaign finance legislation," said William McGinley, the Patton Boggs attorney who has served in key counsel positions for the Republican National Committee and the National Republican Senatorial Committee. "It's very encouraging."
Others cast the case as an opportunity to overturn cumbersome regulations spearheaded by an agency that does more harm than good.
The court should overturn Austin, argues Indiana attorney Jim Bopp, a prominent campaign finance reform opponent, "because, short of it, we will continue where we are, which is in a morass of difficult-to-administer, complicated legal arguments and an agency that is just moving heaven and earth to prevent deregulation. Those are problems that can only be cut through by overturning Austin."
But for many who back the Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold, the case is cause for despair.
"BCRA is probably already on the chopping block," admitted Tara Malloy, associate legal counsel at the Campaign Legal Center, which has filed briefs supporting the FEC's position. "We're not without hope that the Supreme Court will decline to do anything, but they're probably going to narrow BCRA."
Malloy said going too far would stand in contrast with Roberts's previous pledges to respect stare decisis, the judicial term meaning established precedent. Re-examining Austin, a case settled in 1990, "is pretty radical," she said, adding that further erosion of restrictions on corporate cash would be a slippery slope.
"If the court overrules Austin, they have eliminated the constitutional justification for restrictions on corporate contributions in the first place," Malloy said.
A decision overturning Austin "would ignore past precedents of the Supreme Court without any apparent basis for doing so other than a change in the make-up of the court," Wertheimer added. "That is not a legitimate judicial basis for reversing decisions."
Though arguments have not taken place yet, many in the reform community seem almost resigned to their fates, and election law experts say the case appears to be headed for a foregone conclusion.
Kelner, the veteran Republican attorney, said most agree on the outcome, but how the court arrives at the decision remains up in the air. "It's just a question of how the FEC loses the case," he said.
Though he argued for the reformers’ cause as President Bush's solicitor general, Republican attorney Ted Olson will lead Citizens United's case. It is the latest step in a crusade, spearheaded by Bopp, the Federalist Society and other conservative legal groups that have been working since the Buckley decision to allow more money in politics.
In many cases, opponents of affirmative action, abortion and other hot-button topics have pursued strategies of slowly chipping away through incremental steps before the Supreme Court. But the opponents of campaign finance laws on the books today seem to have pursued a different strategy.
Austin, McConnell, FEC v. Beaumont and Caperton v. Massey, the four major campaign finance cases over the last two decades, have all amounted to swings for the fences as BCRA opponents looked for a way to eviscerate the legislation in one fell swoop.
So far, they have struck out. But, many on both sides say, the BCRA opponents have finally gotten a pitch to hit, and with Wednesday's arguments, they may hit a home run.