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At Hearing, Supreme Court's Conservatives Skeptical of Campaign Finance Law
Sotomayor ventured that the court did not have enough information to make such a dramatic change in campaign finance laws and said there are narrow ways to decide the case without confronting the court's precedents.
Two are at issue. 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 other 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 the ad does not explicitly support or oppose that person.
Three current justices -- Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- dissented from the 2003 decision, and all have said Austin should be overturned.
That leaves Roberts and Alito, both of whom have been skeptical since joining the court about the government's right to limit political speech.
The two reacted sharply last spring when a government lawyer said that, although the law did not cover the issue, the government theoretically could move against certain books sponsored by corporations that advocated for or against candidates.
Roberts was not assuaged Wednesday by Kagan's assertion that "the government's position has changed" and that the Federal Election Commission had never moved in that direction.
"We don't put our First Amendment rights in the hands of FEC bureaucrats," Roberts said.
While Roberts and Alito were highly critical of the government's arguments, it is risky to speculate how far the court is willing to go. Just last term, the court's conservatives seemed poised to overturn a key portion of the Voting Rights Act, but in the end they pulled back from such a repudiation of a congressional decision.
Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.) were in the courtroom for the arguments, as was Senate Minority Leader Mitch McConnell (R-Ky.), who has argued that the law should be struck down.
McCain and Feingold issued a statement after the arguments reminding Roberts that they had voted for him because of his confirmation-hearing promise to respect precedents. Overturning these, they said, "would completely contradict that promise, and could have serious consequences for our democracy."
It is unclear whether the justices will decide the case before their regular term begins Oct. 5. The case is Citizens United v. Federal Election Commission.