Supreme Court sharply questions ban on corporate spending

A majority of Supreme Court justices on Wednesday sharply questioned the government’s rationale for limiting corporate speech with campaign finance laws.

The tough 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 pessimism.
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.

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The case originally examined whether Citizens United could use funds donated by corporations to produce and show a movie slamming then-presidential candidate Hillary Rodham Clinton. But in order to fully examine the ramifications of its actions, the court expanded the case to include arguments over two other cases, McConnell v. FEC and Austin v. Michigan Chamber of Commerce, concerning whether bans on corporate communications about political candidates within certain time periods of an election are constitutional.

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.

Election 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.

“Most of the questioning was about how Citizens United gets to run their movie, not whether,” said Marc Elias, a Democratic attorney at Perkins Coie.

Though 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.

Kennedy, 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.

Former 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.

Justices 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 United.

After the arguments, McCain and Feingold both blasted justices for being dangerously out of touch.

“The questioning shows a real disconnect, a strong disconnect between the justices and political reality,” McCain said at the press conference.

“I 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.

O’Connor’s departure and the arrival of Alito has shifted the balance of the court against McCain-Feingold, according to people on both sides of the debate.

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 system.

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.”

Olson 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.

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Though Congress has expressed its will numerous times over the past 60 years in prohibiting corporate campaign communications, Olson said the court “must always second-guess Congress when the First Amendment is in play.”

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.”

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