High Court's Conservatives Skeptical of Election 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.

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.

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