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Reversal of Precedents at Issue
Campaign Case Touches on Justices' Stance on Earlier Rulings

By Robert Barnes
Washington Post Staff Writer
Tuesday, September 8, 2009

The Supreme Court's unusual hearing Wednesday on the role corporations can play in influencing elections carries the potential not only for rewriting the nation's campaign finance laws but also for testing the willingness of the court led by Chief Justice John G. Roberts Jr. to defy the decisions of Congress and to set aside its own precedents.

The court will consider whether the "proper disposition" of a case -- pitting a conservative group's scorching campaign film about Hillary Rodham Clinton against federal campaign finance laws -- requires overturning two decisions that said government has an interest in restricting the political activities and speech of corporations.

That raises ageless questions about the role of stare decisis -- the court's custom of standing by its previous decisions. But it also raises new ones about the boldness of a court that has moved to the right with the addition of Roberts and Justice Samuel A. Alito Jr.

"Everyone knows this is a case about the chief and Justice Alito," said Richard J. Lazarus, co-director of the Supreme Court Institute at the Georgetown University Law Center. "And the real question here is whether the chief is ready to pull the trigger" on declaring the restrictions unconstitutional.

Roberts's instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach -- Roberts and Alito have voted for every challenge to campaign finance laws since joining the court -- may simply be a way to make more-sweeping decisions appear inevitable.

"I don't think people should underestimate the chief justice's ability to look down the road," said Washington attorney David C. Frederick, who frequently argues before the court. "I think he's got a larger constitutional vision. He's relatively young and looking into the future."

As the recent hearings on new Justice Sonia Sotomayor showed, pledging allegiance to stare decisis is a staple of the modern confirmation process for a Supreme Court nominee. Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said he decided to vote against the judge from New York because he did not think she could resist the "siren song" of judicial activism.

To that end, those who favor strong government controls on campaign finance, such as Democracy 21's Fred Wertheimer, say Roberts should stand by his own words about how careful the court should be in overturning precedent.

"It is not enough that you may think the prior decision was wrongly decided," Roberts said at his confirmation hearing. "That really doesn't answer the question; it just poses the question."

Instead, he said, justices must "look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments."

There are two precedents at stake in Wednesday's rehearing of Citizens United v. Federal Election Commission. One is the court's 1990 decision in Austin v. Michigan Chamber of Commerce, in which it upheld a state law that said corporations could be barred from spending their profits to urge a candidate's election or defeat.

The second is part of the 2003 decision upholding Congress's Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold campaign finance law. The court ruled 5 to 4 that Congress may curtail corporate spending on advertising that mentions a candidate shortly before an election, even if it does not explicitly support or oppose that person.

Three current justices -- Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- have said Austin should be overturned, and all three said in McConnell v. FEC that McCain-Feingold violates the Constitution's guarantee of free speech.

Those who favor the restrictions said a recognition that government may treat corporations and individuals differently when it comes to political spending dates back more than 100 years.

"Overruling Austin or McConnell in this case would be unwarranted and unseemly," former solicitor general Seth P. Waxman told the court on behalf of McCain and other congressional sponsors. "Stare decisis requires respect for precedents absent a special justification for overruling them. No such justification exists."

But for all the attention to stare decisis, the court regularly rejects precedents, in ways urged by both conservatives and liberals.

The court ruled in 1986 in Bowers v. Hardwick that the Constitution contains no protection for gay rights. Justices overturned the decision 17 years later, with Kennedy writing: "Bowers was not correct when it was decided, and it is not correct today."

The Roberts court has stepped to the line of declaring a major piece of federal legislation unconstitutional, but backed down. Just three months ago, the court raised questions about Congress's reauthorization of part of the Voting Rights Act, but concluded that "normally, the court will not decide a constitutional question if there is some other ground upon which to dispose of the case."

But Steven R. Shapiro of the American Civil Liberties Union said the court, the only body that can remedy a constitutional mistake, should reexamine the free-speech questions raised by McCain-Feingold.

"Stare decisis does matter, and justices should think long and hard before overturning decisions" of previous courts, Shapiro said. "But you can't have a system that says if you make a mistake, it must stand forever."

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