The Supreme Court on Wednesday will hear arguments in a case that could reverse major gains made in recent decades to reduce the influence of corporate money on federal elections.
At first blush, Citizens United v. Federal Elections Commission appears to present relatively narrow, technical questions about the definition of terms under the federal campaign finance law. But after hearing oral arguments in the case last Spring, the Supreme Court decided that rather than simply rule on the immediate questions before it, it wanted the lawyers to argue more broadly whether the court should go further and, reversing previous precedents, invalidate corporate campaign restrictions on the grounds that they infringe upon corporations’ rights to free speech.
In a highly unusual move, the court asked the lawyers to re-brief and re-argue the case, focusing on this critical constitutional question. The court has convened a special session, a month earlier than usual, to hear those arguments. If a majority of the court agrees to reverse those precedents, experts say the court could open federal campaigns to a flood of corporate funding, radically altering American politics and the nature of electoral democracy for the foreseeable future.
The case also highlights the importance of Supreme Court appointments. Although the court’s newest justice, Sonia Sotomayor, is expected to rule with the more liberal wing of the court to uphold existing campaign finance restrictions, the replacement of Justice Sandra Day O’Connor by Justice Samuel Alito by George W. Bush appears to be the reason the court is even considering such a radical shift.
On its face, the case is about whether Citizens United, a conservative nonprofit group that receives corporate funding, could pay $1.2 million to fund distribution of its anti-Hillary Clinton documentary as a “video on-demand” during the month before the presidential primary.
The Bipartisan Campaign Reform Act of 2002, otherwise known as McCain-Feingold, bars corporations and labor unions from using their treasury funds to pay for “electioneering” on broadcast, cable or satellite transmissions for 30 days before a presidential primary and 60 days before the general election.
“Hillary: The Movie” is a 90-minute documentary in which conservative critics interviewed on camera alternately call Clinton “deceitful,” “cunning,” “ruthless,” a “congenital liar,” and “not qualified as commander in chief.” Citizens United, represented by former Bush administration solicitor general Theodore Olson, argues that its film is not “electioneering” because it doesn’t advocate for or against any particular candidate, it just presents facts and some individuals’ opinions about Hillary Clinton. Alternatively, Citizens United is arguing that the McCain-Feingold law is unconstitutional.
But the court has already ruled otherwise. In 2003, In McConnell v. FEC, the court ruled on a challenge to the McCain-Feingold Act brought by Sen. Mitch McConnell (R-Ky.), among others. The justices voted 5-4 to uphold the law. Normally, that would answer the question and put an end to the broader constitutional argument.
Since 2003, however, the composition of the court has changed. Justice O’Connor, who provided the critical fifth vote in favor of the law, has been replaced by Justice Samuel Alito, who’s made clear his skepticism of campaign finance restrictions. (Three of his colleagues — Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas — have previously signed minority opinions advocating striking down campaign finance restrictions.) Chief Justice Roberts has also expressed concern about the campaign finance laws.
As a result, instead of deciding the case, the court announced in June that it would convene a special session to consider specifically whether it should reverse McConnell and another ruling from 1990, Austin v. Michigan Chamber of Commerce, which upheld a state’s right to limit direct corporate spending in elections. And the cases all build upon a long history of case law defining corporations and their role.
“This line of cases goes back to 1907,” says Monica Youn, a lawyer and specialist in campaign finance reform at the Brennan Center for Justice at New York University Law School, which submitted an amicus brief in the case. “Since 1907 the United States has recognized that corporations have certain rights, but they’re not citizens, they don’t vote, so those rights can be limited.”
The right at issue is the First Amendment right of free speech. Conservatives who oppose campaign finance regulation argue that corporations have the same right to free speech – and to political speech – as anybody else does.
The federal government, which is defending the regulation, hasn’t exactly helped matters. At the first oral argument of this case in March, the government’s lawyer, responding to a question from Justice Alito, suggested that, following the same principles, Congress could ban corporate funding of a book favoring a particular candidate. (McCain-Feingold doesn’t apply to books, newspapers or the Internet. The Washington Independent has signed onto an amicus brief submitted by the Brennan Center clarifying that the campaign restrictions at issue in this case do not restrict Web publications.) “That’s pretty incredible,” Alito replied.
Conservatives have since pounced on the idea to argue that supporters of campaign finance would support government book banning.
Similar concerns appear to have prompted the court to revisit its earlier decisions on the issue, surprising legal experts as well as participants in the case.
“This was a real left-field move by the Supreme Court,” said Youn.
Most experts agree it does not bode well for the law. Rick Hasen, a professor at Loyola Law School who writes Election Law Blog has written: “If Roberts or Alito were ready to go the narrow route again in Citizens United . . . there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing.”
Doug Kendall, president of the Constitutional Accountability Center, noted on Huffington Post that the last time the court interrupted its summer vacation to hear a special argument was in one of the cases it now may overturn, McConnell v. FEC. “Before McConnell, the Court hadn’t returned to DC for a pre-Term summer session since 1974, when in United States v. Nixon it ordered President Richard M. Nixon to surrender his secret Watergate tapes.”
Ironically, Ted Olson, now representing Citizens United, will be trying to convince the court to overrule a case he defended as solicitor general six years earlier. (Olson defended the campaign finance law in McConnell.)
The case will also be a statement about how “activist” the current Supreme Court is. The Supreme Court normally avoids reaching constitutional questions if they’re not necessary to the case, and rules consistently with its earlier opinions. This case could easily be handled that way, said Hasen. “Here it’s very easy to avoid the constitutional question. The fact that the court asked for argument, suggests some justices are interested in not following that usual principle of avoidance.”
Ironically, it’s usually conservatives who criticize liberal judges as “activist” for their willingness to overrule precedent or read constitutional rights expansively. (Jeff Sessions, for example, warned that Sonia Sotomayor would be vulnerable to “the siren call of judicial activism.”) Here, it would be the conservative wing of the court reversing precedent to create unprecedented First Amendment rights for for-profit corporations.
The consequences of that sort of activism could be serious, writes Kendall. “Citizens United will help answer a profoundly important question about whether there is in fact a meaningful difference of opinion among the conservative justices on the question of what justifies overturning prior rulings of the Supreme Court. The answer to this question will go a long way toward determining whether the Court’s shift to the right will be gradual or sharp in the coming years.”
As for campaign finance rules in particular, if the court overrules the two court precedents involved here, it would likely invite a slew of challenges to other campaign finance restrictions on First Amendment grounds.
“If the court reverses Austin, then that, combined with a number of other cases that will come down the pipeline in the next three years, will lead to much more corporate money generally in election process,” predicted Hasen. “It will have big influence on who gets elected and the kind of legislation that gets passed.”
Daphne Eviatar is a law reporter for the Washington Independent.
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