By Reid Wilson - 09/09/09 04:44 PM EDT
A majority of Supreme Court justices on Wednesday sharply questioned the government’s rationale for limiting corporate speech with campaign finance laws.
questions led opponents of campaign finance restrictions to believe
they had scored a victory, while some supporters of the law sponsored
by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) expressed
In an unusual re-hearing of a case pitting a conservative nonprofit group, Citizens United, against the Federal Election Commission (FEC), justices expressed skepticism at the government’s right to prohibit corporate communications related to elections.
Four justices pressed Solicitor General Elena
Kagen to explain just what sorts of speech the government would ban.
Kagen suggested that certain bans, such as a prohibition on books,
would not be enforced, but she admitted the government’s rationale for
keeping corporate money out of politics had changed.
law experts and Supreme Court watchers said the questioning, led by
Chief Justice John Roberts and joined by Associate Justices Antonin
Scalia, Anthony Kennedy and Samuel Alito, indicated the court will rule
in Citizens United’s favor. The question that remains, they said, is
not whether the conservative group wins the case, but how far the court
goes in overturning aspects of campaign finance law.
the questioning was about how Citizens United gets to run their movie,
not whether,” said Marc Elias, a Democratic attorney at Perkins Coie.
Justice Clarence Thomas did not ask questions, he has sided repeatedly
against campaign finance reform laws. Thomas dissented in McConnell and
sided with the majority in FEC v. Wisconsin Right to Life, a case that
upheld an as-applied challenge to McCain-Feingold.
widely viewed as at the center of the court’s ideological spectrum,
suggested he may side with conservatives and aid them in going as far
as possible in allowing corporate speech.
“There is no place in which an ongoing chill [in speech] is more dangerous than the electoral process,” Kennedy said.
Solicitor General Ted Olson, arguing for Citizens United, called
communication in an election “the most fundamental right we can
exercise in a democracy.” He pointed out that a corporation has been
deemed to have the same rights as an individual in previous court cases.
Ruth Bader Ginsburg, John Paul Stevens and Stephen Breyer grilled Olson
over his views, while Justice Sonia Sotomayor, making her debut as a
member of the court, cited stare decisis — the judicial principle for
respecting settled precedent — as a concern in ruling for Citizens
After the arguments, McCain and Feingold both blasted justices for being dangerously out of touch.
questioning shows a real disconnect, a strong disconnect between the
justices and political reality,” McCain said at the press conference.
wish that one of the justices who were standing up for people’s First
Amendment rights had ever run for county sheriff,” he added. The
justices showed an “extreme naïveté of the influence of corporate money
and soft money.”
The Supreme Court upheld the McCain-Feingold
law several times while former Justice Sandra Day O’Connor served on
the court. O’Connor was the Senate majority leader in the Arizona state
Senate; the court now has no member who has held elected office.
departure and the arrival of Alito has shifted the balance of the court
against McCain-Feingold, according to people on both sides of the
Feingold warned that, should the court roll back
sections of McCain-Feingold by overturning Austin and McConnell, it
would leave Congress with “no ability” to reform the campaign finance
A few feet away, attorneys from the Campaign Legal
Center, a reform advocacy group, were subdued. Scott Thomas, a former
chairman of the FEC who serves on the group’s advisory board, admitted:
“The government’s got a tough row to hoe.”
“It really does
seem that there are five justices of the Supreme Court who, given their
druthers, would throw out Austin and would allow corporations to make
independent expenditures,” said Rob Kelner, a Republican attorney who
heads the election law practice at Covington & Burling. “The real
question is whether all five of those justices follow their
inclinations or whether some of them decide that the court should
proceed more slowly and deliberately and decide the case in a more
limited way, and leave the question to some future cases.”
argued in favor of campaign finance reform as a solicitor general in
the Bush administration on behalf of the Bipartisan Campaign Reform Act
spearheaded by McCain and Feingold. But on Wednesday, he used First
Amendment arguments to criticize the same bill as infringing on speech.
Floyd Abrams, a New
York attorney representing Senate Minority Leader Mitch McConnell
(R-Ky.), argued that justices should consider striking down an entire
section of McCain-Feingold because it would bring so many as-applied
challenges — that is, challenges made on a case-by-case basis, as to
constitute an overly broad statute.
“It is worth our moving away, in this case, from looking for the narrow way out,” Abrams said. “There is a block to public discourse caused by this congressional legislation.”