Supreme Court Considers Role of Corporations in Campaign Finance

Robert Barnes
Washington Post Supreme Court Reporter
Wednesday, September 9, 2009; 1:30 PM

The Supreme Court will hear arguments today about government regulation of campaign materials created by institutions that accept corporate donations.

Washington Post Supreme Court reporter Robert Barnes took questions about the case, as well as the debuts of Supreme Court Justice Sonia Sotomayor and Solicitor General Elena Kagan.

____________________ We are experiencing technical problems. We will advise further in a few minutes. Thank you.


Robert Barnes: Hey folks--Sorry for the delay but we've had some technical problems on our end. I'll skip the preamble and get right to your questions


New York, N.Y.: I know the court must consider the law and precedent, but how much do some believe they are allowed to look at how the law affects society and how campaign finance laws allow manipuations of election results by wealthy sources?

Robert Barnes: What makes this case unusual is that the question of whether to overrule the court's two precedents in this case was not raised in the court below. That is why the government--and some of the justices--felt the court should not overrule precedents, but remand the case for further study if the majority had a serious problem with the constitutional questions. There's not much of a record.


New York, N.Y.: Do new Justices traditionally ask many questions on their first case or do they traditionally watch and observe?

Robert Barnes: I think no one wants to look like a showboat, nor a potted plant. Justice Sotomayor seemed to take the middle ground. She waited a respectful time, asked a couple of questions and seemed to make her position clear, and remained mostly quiet after that. The other justices were more courteous to her than they often are with each other--no one interrupted.

_______________________ Court Conservatives Concerned About Campaign Spending Limits (Post, Sept. 9)

_______________________ The Newest Justice Formally Takes Her Seat (Post, Sept. 9)


Los Angeles, Calif.: Given the likelihood U.S. spending, time and resources devoted to political campaigns will continue escalating without federal constraints, what's the probability that a Supreme Court member will break with ideology tradition (i.e., liberal vs. conservative) and change their position on this issue? Changing position means a conservative would choose to constrain corporate spending or that a liberal would choose to allow unlimited corporate spending. If there is a reasonable chance for a break with tradition, who is more likely to do so? Also, do you feel Chief Justice Roberts will be instrumental in fashioning a consensus? If not, who is likely to be the critical vote?

Robert Barnes: The chief justice will be instrumental to the outcome of the case, but whether he will attempt to find concensus or not is the question. He is clearly skeptical of the limits and the question is whether he is willing to reverse the court's prcedents or look for a narrow way out. The liberal-conservative breakdown on the court is different than the liberal-conservative breakdown among interest groups. Conservatives in both camps are opposed to the restrictions, but liberal groups at large are split on whether they are necessary to curb special interests or an unconstitutional restriction on free speech.


Boston, Mass.: How did a case about a Hillary Clinton movie judicially activate into a very broad review of campaign finance laws and precedents going back 100 years? How often have justices decided to rehear a narrow case in a much broader context? What is the internal process to decide to do this? Can any justice propose it on any case and is just a simple majority vote needed to do it? Any historical context would be appreciated.

Robert Barnes: It is a rare event, this kind of rehearing. The conservative group, Citizens United, did not raise the broad questions during the hearing in the court below, but in its brief to the court, suggested that its precedent banning corporations from spending their profits to support or oppose candidates be overturned. Instead of deciding the narrow question, the court in June asked for additional briefing on the broader question. No one knows exactly what happens in the court's private deliberations, but it suggests some members of the court were willing to overturn the precedents and others would not go along without a briefing. We already know three members of the court--Scalia, Kennedy and Thomas--are willing to overturn.


Arlington, Va.: Overturning McCain-Feingold will be a travesty. It's bad enough that the regular campaign ads play with the truth, but corporations WILL LIE in order to make a buck (and ruining someone's reputation is just an extra added bonus). None of these ads will be fact- checked by the stations who run them. Our system isn't perfect, but corporate dollars will DESTROY our political process.

Robert Barnes: Well, certainly you're entitled to your point of view. You should remember, though, that corporations already support and oppose candidates, but they must now do it through political action committees, where shareholders and employees must make decisions to contribute. This case involves the company's general treasury. It is also true that nearly half the states, including Virginia, already allow direct corporate contributions.


On Vacation: I'm no constitutional scholar, but it seems simple to me on its surface. Sure, the Constitution guarantees the right to free speech -- to individuals. I don't see how a corporation or other entity is a natural-born anything. It's a legal creation. Too simple?

Robert Barnes: Perhaps you are a constitutional scholar. Justices Ginsburg and Sotomayor raised similar questions.


Robert Barnes: Sorry for our truncated time today, folks. The court starts its new term on Oct. 5, and we can do this again then.


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