Supreme Court justices question campaign finance law

The US Supreme Court appears poised to pare back campaign finance reform measures that sharply restrict corporate expenditures during federal campaigns.

At issue in a special hearing Wednesday was whether the court should strike down two legal precedents that bar corporations from spending their general treasury funds on political speech during campaign season.

Although it is difficult to predict how the high court may rule based solely on the questions the justices ask during oral argument, several analysts say five of the nine justices appear united in their skepticism over the two measures.

"We don't put our First Amendment rights in the hands of FEC bureaucrats," Chief Justice John Roberts said at one point, referring to staff members of the Federal Election Commission which enforces the campaign finance laws.

Three justices, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, are on record opposing the two provisions. By the end of the 80-minute oral argument, it appeared that Chief Justice Roberts and Justice Samuel Alito are prepared to vote with their colleagues on the court's conservative wing.

Conservative justices repeatedly raised questions about whether the campaign finance restrictions on corporations were too broad and all-encompassing to pass constitutional muster.

At the same time, the court's liberal wing remained united in the view that the corporate restrictions were justified by Congressional concern about the corruptive and distorting influence of corporate dollars in federal campaigns. Some also suggested that it was unfair for corporations to use shareholder money to pursue political goals.

Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and the court's newest justice, Sonia Sotomayor, repeatedly stressed that the court should identify narrower grounds to decide the case rather than overturning established legal precedents.

But the conservatives – including Roberts and Alito – seemed determined to correct what they view as an error of constitutional import.

The 'Hillary' documentary

The case, Citizens United v. Federal Election Commission, involves a decision by the FEC to block video-on-demand broadcasts of a 90-minute documentary attacking the potential presidential candidacy of Hillary Rodham Clinton.

The film, "Hillary: The Movie," was produced by a conservative nonprofit group called Citizens United. The group complained that the FEC action was an unconstitutional form of government censorship of political speech.

The government responded that the documentary was similar to a pre-election broadcast attack advertisement and thus could be regulated by the government under the 2002 Bipartisan Campaign Reform Act (BCRA).

The high court is considering whether to overturn the section of BCRA that deals with corporate spending before and during elections. In addition, the court is considering overturning a 1990 decision in a case called Austin v. Michigan Chamber of Commerce. The 1990 case established the legal foundation for the corporate restrictions later adopted in BCRA.

'Corporate electioneering'?

In a joint statement, Sens. John McCain (R) of Arizona and Russ Feingold (D) of Wisconsin, the two cosponsors of BCRA, warned that overturning the corporate restrictions in the law would be a "drastic step."

"At stake in this case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are called into question," the senators said.

"During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent," Senators McCain and Feingold said. "If he casts the deciding vote to overrule [the two legal precedents] it would completely contradict that promise, and could have serious consequences for our democracy."

Others were pleased with the apparent direction of the court.

"Based on today's argument, free speech advocates can be optimistic for a broad vindication of First Amendment rights," said Steve Simpson, a lawyer with the Institute for Justice. "Several justices recognized that a piecemeal approach to free speech is insufficient to protect vital constitutional rights."

Mr. Simpson added, "Corporate speech bans are nothing more than government censorship of selected speakers. The simple fact is it takes money, including corporate money, to speak up and be heard. Under the First Amendment, the government has no business deciding which speakers gain admittance to the marketplace of ideas."

Doug Kendall, president of the Constitutional Accountability Center, holds a different view.

"Since the dawn of the Republic, the court has recognized that corporations are artificial entities that enjoy unique advantages and must therefore be subject to greater government oversight," Mr. Kendall said. "If the court turns back on this constitutional text and history, it will blatantly disregard the will of the people and unleash corporate influence on elections."

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