At Hearing, Supreme Court's Conservatives Skeptical of Campaign Finance Law

By Robert Barnes
Washington Post Staff Writer
Thursday, September 10, 2009

Conservative members of the Supreme Court indicated Wednesday that they could not reconcile government restrictions on corporate spending in elections with constitutional protections of free speech and may rule broadly to strike what has been a long-standing fixture of campaign finance law.

A majority of the court seemed impatient with an increasingly complicated federal scheme intended to curb the role of corporations, unions and special interest groups in elections. The laws, former solicitor general Theodore B. Olson told the court, instead "smothered" First Amendment rights and "criminalized" free speech.

The question is whether the court is willing to strike two of its precedents and defy Congress on corporate restrictions that date to the beginning of the 20th century.

Wednesday's unusual session was a rehearing of a conservative group's challenge of a federal law that restricted its distribution of a scathing film about Hillary Rodham Clinton during her run for the 2008 Democratic presidential nomination.

The Obama administration's solicitor general, Elena Kagan, arguing her first case before the court, seemed willing to sacrifice the case at hand to keep the court from making a broad constitutional finding that would hamper government efforts to restrict corporate spending in elections.

Under tough questioning from Chief Justice John G. Roberts Jr. about whether the government was admitting that it should lose the case about the film, Kagan said no. But she added: "If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes."

But she appeared to make little headway with Roberts, who along with Justice Samuel A. Alito Jr. is key to how broad or narrow the court's ruling would be.

Wednesday's hearing was an extraordinary one for the court for a number of reasons. Besides Kagan's debut and the unusual nature of the session, weeks ahead of the court's traditional opening, it was the first case for Justice Sonia Sotomayor.

Olson, who was solicitor general for President George W. Bush, argued for the challengers, as did First Amendment specialist Floyd Abrams.

Kagan was joined in defending the federal law by Clinton administration solicitor general Seth Waxman. But all the legal firepower seemed to do little to persuade dug-in justices to look at the case differently.

The court's liberal members defended the restrictions and said it is reasonable for Congress to differentiate between an individual's role in the political process and a corporation's.

"A corporation, after all, is not endowed by its creator with inalienable rights," Justice Ruth Bader Ginsburg said.

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