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Justices may rule soon on campaign-finance case

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By Robert Barnes
Washington Post Staff Writer
Saturday, January 9, 2010

After a holiday break, the Supreme Court returned to work Friday with unfinished business at hand, some of its toughest cases ahead and a looming decision that could rock the national political landscape in this year of midterm congressional elections.

The justices met privately to pick through the stack of review requests that accumulated since their last public session Dec. 14. And they will begin a new round of oral arguments on Monday in which Justice Sonia Sotomayor will probably play a prominent role.

But it is an old case that is puzzling court observers and consuming the political world: a pending decision on whether restrictions on corporate and labor union spending on political campaigns violate the First Amendment. It arose from a less significant question about whether a conservative group's financing of and distribution plans for a documentary -- "Hillary: The Movie," a scathing account of Hillary Rodham Clinton's presidential pursuit -- violated the McCain-Feingold Bipartisan Campaign Reform Act.

The court heard oral arguments on the original question in March 2009, but adjourned in June without a decision. Instead, the justices said they would consider the larger question of whether it is constitutional to ban corporations and labor unions from drawing funds from their general treasuries to support or oppose candidates.

Congress for decades has outlawed such expenditures, and 22 states have similar bans. Both sides agree that a ruling saying such restrictions are unconstitutional would mean a sea change in the way political campaigns are funded.

The court's decision to hear the larger question in September, in advance of its regular term, was seen as a possible attempt to expedite the ruling before the midterm primary season. But not much time is left; Illinois will hold elections on Feb. 2.

At the September arguments in Citizens United v. Federal Elections Commission, the more conservative justices indicated deep skepticism about the constitutionality of the bans on corporate spending. But because of the circumspect court's private deliberations, it is hard to speculate about the cause for delay -- except that the justices are deeply divided.

One possibility is that a broad decision declaring the restrictions unconstitutional has drawn lengthy dissents from those in the minority, who have no incentive for rushing the ruling. But equally possible is a failure to find a majority for such clear guidance and a multitude of competing opinions in which a narrow majority agrees only on the outcome in this specific case.

The ruling could come by Tuesday.

The new year will bring at least a few new cases to a docket that is mostly full -- the court traditionally stops hearing oral arguments in April. The court has already taken at least one case that will command the nation's attention: whether the Second Amendment right to personal ownership of firearms that rendered unconstitutional the handgun ban in the federal enclave of Washington also applies to state and city attempts to severely restrict gun ownership.

And all will be watching Justice John Paul Stevens for additional signs that he plans to retire and give President Obama a second opportunity to nominate a justice. Stevens will celebrate his 90th birthday in April, and he has prompted the speculation by hiring only one clerk for the term that begins in October. Retired justices have one clerk; active justices hire four.

More will also be learned about the court's newest justice. Sotomayor, 55, has delivered her first opinion, on a largely procedural point of law. On the bench, she has appeared more the judge with nearly two decades of experience than a tentative rookie justice. She is a prolific questioner, often inquiring of lawyers more than other justices do.

Three cases on the docket next week may focus more attention on the court's newest member.

Praised by Obama as the "judge who saved baseball" because of her role in a case involving the Major League Baseball strike, Sotomayor and the rest of the court will turn to other sports in deciding an antitrust case brought against the National Football League, American Needle v. NFL.

In an international custody case, Abbott v. Abbott, the court will consider the protections in a treaty meant to discourage child abduction. Sotomayor dealt with the treaty as an appellate judge.

In a third, she could play a key role in deciding how to implement a decision the court reached seven months ago -- or whether it should be reversed.

Sotomayor's influence is outsized in Briscoe v. Virginia because David H. Souter, the justice she replaced, was in the majority of the 5 to 4 ruling that defendants have the right to question crime lab analysts about the reports they produce.


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