Supreme Court Eyes Decades of Campaign Finance Laws

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Tuesday, September 08, 2009 at 6:00 am
U.S. Supreme Court of the United States (WDCpix)

U.S. Supreme Court of the United States (WDCpix)

The Supreme Court on Tuesday Wednesday will hear arguments in a case that could reverse major gains made in recent decades to reduce the influence of corporate money on federal elections.

At first blush, Citizens United v. Federal Elections Commission appears to present relatively narrow, technical questions about the definition of terms under the federal campaign finance law. But after hearing oral argument in the case last Spring, the Supreme Court decided that rather than simply rule on the immediate questions before it, it wanted the lawyers to argue more broadly whether the court should go further and, reversing previous precedents, invalidate corporate campaign restrictions on the grounds that they infringe upon corporations’ rights to free speech.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

In a highly unusual move, the court asked the lawyers to re-brief and re-argue the case, focusing on this critical constitutional question. The court has convened a special session, a month earlier than usual, to hear those arguments. If a majority of the court agrees to reverse those precedents, experts say the court could open federal campaigns to a flood of corporate funding, radically altering American politics and the nature of electoral democracy for the foreseeable future.

The case also highlights the importance of Supreme Court appointments. Although the court’s newest justice, Sonia Sotomayor, is expected to rule with the more liberal wing of the court to uphold existing campaign finance restrictions, the replacement of Justice Sandra Day O’Connor by Justice Samuel Alito by George W. Bush appears to be the reason the court is even considering such a radical shift.

On its face, the case is about whether Citizens United, a conservative nonprofit group that receives corporate funding, could pay $1.2 million to fund distribution of its anti-Hillary Clinton documentary as a “video on-demand” during the month before the presidential primary.

The Bipartisan Campaign Reform Act of 2002, otherwise known as McCain-Feingold, bars corporations and labor unions from using their treasury funds to pay for “electioneering” on broadcast, cable or satellite transmissions for 30 days before a presidential primary and 60 days before the general election.

“Hillary: The Movie” is a 90-minute documentary in which conservative critics interviewed on camera alternately call Clinton “deceitful,” “cunning,” “ruthless,” a “congenital liar,” and “not qualified as commander in chief.” Citizens United, represented by former Bush administration solicitor general Theodore Olson, argues that its film is not “electioneering” because it doesn’t advocate for or against any particular candidate, it just presents facts and some individuals’ opinions about Hillary Clinton. Alternatively, Citizens United is arguing that the McCain-Feingold law is unconstitutional.

But the court has already ruled otherwise. In 2003, In McConnell v. FEC, the court ruled on a challenge to the McCain-Feingold Act brought by Sen. Mitch McConnell (R-Ky.), among others. The justices voted 5-4 to uphold the law. Normally, that would answer the question and put an end to the broader constitutional argument.

Since 2003, however, the composition of the court has changed. Justice O’Connor, who provided the critical fifth vote in favor of the law, has been replaced by Justice Samuel Alito, who’s made clear his skepticism of campaign finance restrictions. (Three of his colleagues — Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas — have previously signed minority opinions advocating striking down campaign finance restrictions.) Chief Justice Roberts has also expressed concern about the campaign finance laws.

As a result, instead of deciding the case, the court announced in June that it would convene a special session to consider specifically whether it should reverse McConnell and another ruling from 1990, Austin v. Michigan Chamber of Commerce, which upheld a state’s right to limit direct corporate spending in elections. And the cases all build upon a long history of case law defining corporations and their role.

“This line of cases goes back to 1907,” says Monica Youn, a lawyer and specialist in campaign finance reform at the Brennan Center for Justice at New York University Law School, which submitted an amicus brief in the case. “Since 1907 the United States has recognized that corporations have certain rights, but they’re not citizens, they don’t vote, so those rights can be limited.”

The right at issue is the First Amendment right of free speech. Conservatives who oppose campaign finance regulation argue that corporations have the same right to free speech – and to political speech – as anybody else does.

The federal government, which is defending the regulation, hasn’t exactly helped matters. At the first oral argument of this case in March, the government’s lawyer, responding to a question from Justice Alito, suggested that, following the same principles, Congress could ban corporate funding of a book favoring a particular candidate. (McCain-Feingold doesn’t apply to books, newspapers or the Internet. The Washington Independent has signed onto an amicus brief submitted by the Brennan Center clarifying that the campaign restrictions at issue in this case do not restrict Web publications.) “That’s pretty incredible,” Alito replied.

Conservatives have since pounced on the idea to argue that supporters of campaign finance would support government book banning.

Similar concerns appear to have prompted the court to revisit its earlier decisions on the issue, surprising legal experts as well as participants in the case.

“This was a real left-field move by the Supreme Court,” said Youn.

Most experts agree it does not bode well for the law. Rick Hasen, a professor at Loyola Law School who writes Election Law Blog has written: “If Roberts or Alito were ready to go the narrow route again in Citizens United . . . there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing.”

Doug Kendall, president of the Constitutional Accountability Center, noted on Huffington Post that the last time the court interrupted its summer vacation to hear a special argument was in one of the cases it now may overturn, McConnell v. FEC. “Before McConnell, the Court hadn’t returned to DC for a pre-Term summer session since 1974, when in United States v. Nixon it ordered President Richard M. Nixon to surrender his secret Watergate tapes.”

Ironically, Ted Olson, now representing Citizens United, will be trying to convince the court to overrule a case he defended as solicitor general six years earlier. (Olson defended the campaign finance law in McConnell.)

The case will also be a statement about how “activist” the current Supreme Court is. The Supreme Court normally avoids reaching constitutional questions if they’re not necessary to the case, and rules consistently with its earlier opinions. This case could easily be handled that way, said Hasen. “Here it’s very easy to avoid the constitutional question. The fact that the court asked for argument, suggests some justices are interested in not following that usual principle of avoidance.”

Ironically, it’s usually conservatives who criticize liberal judges as “activist” for their willingness to overrule precedent or read constitutional rights expansively. (Jeff Sessions, for example, warned that Sonia Sotomayor would be vulnerable to “the siren call of judicial activism.”) Here, it would be the conservative wing of the court reversing precedent to create unprecedented First Amendment rights for for-profit corporations.

The consequences of that sort of activism could be serious, writes Kendall. “Citizens United will help answer a profoundly important question about whether there is in fact a meaningful difference of opinion among the conservative justices on the question of what justifies overturning prior rulings of the Supreme Court. The answer to this question will go a long way toward determining whether the Court’s shift to the right will be gradual or sharp in the coming years.”

As for campaign finance rules in particular, if the court overrules the two court precedents involved here, it would likely invite a slew of challenges to other campaign finance restrictions on First Amendment grounds.

“If the court reverses Austin, then that, combined with a number of other cases that will come down the pipeline in the next three years, will lead to much more corporate money generally in election process,” predicted Hasen. “It will have big influence on who gets elected and the kind of legislation that gets passed.”

Comments

36 Comments

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Name
Comment posted September 8, 2009 @ 2:00 pm

arguments are on Wednesday, not Tuesday


trippin
Comment posted September 8, 2009 @ 2:03 pm

When the Supreme Court equated corporations and people, it conferred these corporations speech rights. When the equated money and speech, they handed them a voice completley disproportionate to those without such vast resources. This final act will solidify the plans they've had in motion for decades, since Reagan rescinded the Fairness Doctrine.

The right's vision of a fascist corporate-controlled totalitarian America will be complete.


Andrew
Comment posted September 8, 2009 @ 2:11 pm

Campaign finance reform is still desperately needed. How awful if the Supreme Court reversed the laws that were written to restrict powerful interest groups from having an undue influence on the political process. If they strike down this law or give it a narrower interpretation, then I think we should change our country's name to USCA: United States of Corporate America. There aren't going to be citizens choosing politicians anymore.


jeninoh
Comment posted September 8, 2009 @ 2:52 pm

I think Citizens United should always have to go by their real name… Citizens United Not Timid. Yes that's right, see what the letters spell? That should tell you everything you need to know about that organization and their mockumentary about Hillary Clinton. Misogynist to the very core.


monkey99
Comment posted September 8, 2009 @ 3:08 pm

I think this is just another example of the type and reach of the power corporations have in America. “We the People” is more a euphemism than a declaration these days. I wonder how it will go. Do we release the beast from it's cage? or do the Supreme Court decide in favor of those who are so prominently mentioned in the Constitution, whom they ultimately work for?


washingtonindependent
Comment posted September 8, 2009 @ 3:29 pm

You are correct. This story has been updated.


afisher
Comment posted September 8, 2009 @ 5:00 pm

One would think that all private citizens would be concerned, but so little has been written about the true implications of this case that I suspect that most are woefully ignorant of this case. I can hear the argument, that we still get to vote as singular individuals, so our rights aren't being taken away, but see what the corporations did for the Health Care Reform debate and then tell me that the politicians are not swayed by both political contributions (for their individual campaigsn) and the all the rhetoric paid for by these corporations…who are only looking to protect themselves (and their stockholders).

Assume that Citizens United wins…and the Corporations pay a sufficient number of legislators to pass bills that support their causes only. What if the freedom to share information from various websites becomes legally restricted and only those who have sufficient funds to purchase access to all the individual websites…as aggregators would be legislated out of business…then consider who or what this country would change to. Yes, this sounds like an alarmist POV, but it only takes the first step for these changes to occur…to make the individual voter vulnerable.

This information and possible implications needs to be widely publicized The Supreme Court actions are rarely highlighted until after the fact…but if someone like me can see where this would go, then certainly most citizens should feed threatened by a positive outcome for Citizens United


Gerald Weinand
Comment posted September 8, 2009 @ 5:05 pm

Perhaps they should actually decide whether a corporation is a person, since Santa Clara County v. Southern Pacific Railroad didn't.

Because if corporations are not a persons, then they don't enjoy the same freedom of speech rights as persons do.


Jay
Comment posted September 8, 2009 @ 5:35 pm

Yes, because nothing says “anti-fascist” or “anti-totalitarian” like the “Fairness Doctrine”, a innocent-sounding euphemism for perhaps most direct and offensive government intrusion in Free Speech since the Alien & Sedition Act.

Funny how radical liberals like you profess your “progressive” views in the name of “freedom” and “democracy”, yet you happily approve an idea that would quite literally suppress speech by those that disagree with you. Classic liberal doctrine of supporting free speech only to the extent that it agrees with what you say.

By the way, who administers the “Fairness Doctrine”? The Ministry of Truth?


monkey99
Comment posted September 8, 2009 @ 6:05 pm

afisher,

“alarmist POV”? Hardly. You have it right, but when the foxes run the chicken coop, as they did with healthcare, don't expect change. I think we, as a people, need to express our displeasure with those who would marginalize us by keeping NO incumbents. When offices change hands often, it's difficult to put forth a “paid” idea, no matter how much money is thrown around. Besides which, we have Congressmen and Senators who represent sparsely populated districts, who are making decisions for those larger districts around the country. Evidence the “gang of six”, making decisions on our healthcare. ALL of them represent rural states with a small population.

Of course, we can't do that with the Supreme Court, but a bad idea is still a bad idea. This has to run it's course, and it will be seen as a grand failure. The question is, how many will be victimized by the decision. Just to give it scope, the numbers' in the millions.


Gerald Weinand
Comment posted September 8, 2009 @ 6:13 pm

See my post above – Santa Clara did NOT rule that corporations are persons – a clerk added it to the opinion, but it has no legal bearing. Of course, there is over 100 years of legal precedent based on it that would have to get chucked, but so be it.


Yo
Comment posted September 8, 2009 @ 9:17 pm

Third Branch has the actual movie online: http://thirdbranch.wordpress.com/2009/09/04/hil…


Yo
Comment posted September 8, 2009 @ 9:18 pm

The actual movie is up on Third Branch: http://thirdbranch.wordpress.com/2009/09/04/hil…


turnbull
Comment posted September 9, 2009 @ 6:05 am

Time for Congress to exercise its power over the jurisdiction of the SCOTUS.


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Irish_Wake
Comment posted September 9, 2009 @ 12:04 pm

You are correct, the Fairness Doctrine was an intrusion into fair speech; but your analysis ended with that observation. Since its demise, I have witnessed political speech becoming more based on fascist principles. As evidence I present the recent 'Freedom of Speech Zones”, the Bush administration's Orwellian name for small, chain-link fenced areas located far away from any public venue. This was the only area where free speech was allowed near then-President Bush.

Interesting how classic liberal doctrine was used by an actual, functioning Ministry of Truth.


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Pingback posted September 9, 2009 @ 1:20 pm

[...] In a highly unusual move, the court asked the lawyers to re-brief and re-argue the case, focusing on this critical constitutional question. The court has convened a special session, a month earlier than usual, to hear those arguments. If a majority of the court agrees to reverse those precedents, experts say the court could open federal campaigns to a flood of corporate funding, radically altering American politics and the nature of electoral democracy for the foreseeable future.” http://washingtonindependent.com/57983/supreme-court-eyes-decades-of-campaign-finance-laws [...]


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cameronkirchhoff
Comment posted September 11, 2009 @ 3:54 pm

We must all rally and tell the US Supreme Court that if they do overturn these campaign finance laws they are committing treason on the highest levels. Not only will it give corporations unlimited access to our political but it will give the foreign governments that have stakes in those companies unlimited access to our political system. Those conservatives who are supposed to protect our constitution will be shutting millions of people out of the political process.


DOUGLASFIELD
Comment posted September 14, 2009 @ 11:42 pm

~ SATANS RECENT ROAR IN THE PEOPLES U.S. CONGRESS WAS EVEN LOUD ENOUGH TO BE HEARD IN OUR U.S. SUPREME COURT ~

OUR AMERICAN RELIGIOUS LEADERS SILENCE IS MUCH MORE FRIGHTENING THEN THE POSSIBLE DENIAL OF A FUTURE HEALTH ~ CARE PLAN FOR ALL OUR POORER AMERICANS ….

~ THE LOUD RANT OF SATAN WAS HEARD IN THE PEOPLES HALLS OF U.S. CONGRESS AND AMERICAN RELIGIOUS LEADERS HAVE TURNED THEIR HEADS,CLOSED THEIR EYES AND SHUT THEIR EARS IN FEAR ~

THIS OLD WORLD ORDER OF ABUSE AND NEGLECT OF OUR POORER AMERICANS NEEDS ENLIGHTENED POLITICAL MINDS AND HEARTS TO VIEW GOD DIFFERENTLY THEN $$$… NO MATTER WHAT THEIR POLITICAL PARTY AFFILIATION ???

WHEN WILL OUR WEALTHY ELITE AMERICANS ABATE THEIR ASSAULT ON POORER AMERICANS WITH THEIR MONETARY CONTROL OF OUR IVORY TOWER U.S. CONGRESSIONAL LEADERS OF THE NEW WORLD ORDER ???

THERE ARE NOT MANY MORE DISTRACTIONS LEFT WHICH ARE AVAILABLE FOR OUR WEALTHY ELITE AMERICANS TO HIDE BEHIND IN NOT TAKING PROPER CARE OF ALL OUR AMERICANS IN A HUMANE FASHION !!!

RALPH NADER ATTEMPTED TO EDUCATE AMERICAN VOTERS ABOUT U.S. CORPORATE POWER IN AMERICA AND HOW THEY CONTROL OUR CONGRESSIONAL PEOPLE THROUGH THEIR POCKET BOOK (POLITICAL DONATIONS). *WITHOUT THE DOUGH $$$ THESE U.S. CONGRESSIONAL LEADERS OF THE FREE WORLD DO NOT GET RE~ELECTED TO CONGRESS.*TO STAY IN POLITICAL OFFICE IN AMERICA,ONE HAS TO BARTER YOUR VOTES IN CONGRESS AND REPRESENT POWER INTERESTS IN RETURN FOR THE BUCK$.

POORER AMERICANS HAVE NEVER HAD THE $$$ LOBBY TO INFLUENCE THIS CORRUPT POLITICAL CONCEPT (of horse trading political votes for political contributions) TO ACHIEVE PROPER HEALTH ~CARE OR LEGAL REPRESENTATION FOR ALL OUR MIDDLE ~ CLASS AND WORKING POOR AMERICANS.

AMERICAN IVORY TOWER U.S.CONGRESSIONAL LEADERS OF THE FREE WORLD HAVE PASSED FEDERAL LEGISLATION IN WASHINGTON DC TO SPEND 50 BILLION AMERICAN TAX $$$ ON THE INTERNATIONAL FIGHT AGAINST AIDS OVER THE NEXT FIVE YEARS WHILE THEIR OWN AMERICAN CITIZENS ARE BEING TOLD BY THIS SAME U.S.CONGRESS THAT NATIONAL HEALTH CARE AND PROPER LEGAL REPRESENTATION FOR MIDDLE CLASS AND WORKING POOR CITIZENS IS UNAFFORDABLE.

*** WEALTHY ELITE AMERICANS (WHO ARE ONLY 1% OF OUR USA POPULATION) SADLY ALSO CONTROL HOW OUR U.S.CONGRESS SPENDS THEIR BUDGET TRILLION$ AND HAVE OBVIOUSLY FOUND MORE WORTHY INTERNATIONAL CITIZENS THEN OUR OWN DESPERATE AND NEEDY POOR TO ASSIST !!!

~Poorer Americans Nationwide only get 400 million $$$ per year for legal representation allocated them by CONGRESS~

Middle Class and Working Poor Americans are unable to afford proper legal representation in their Civil, Criminal and Family Courts of law all across America causing tremendous hardships nationwide,but these great minds and callous hearts in our American Congress have found others Worldwide more needy then their own citizens who are being falsely incarcerated,wrongfuly executed,losing their homes or apartments,losing child custody or visitation with their children etc…

Not being afforded proper legal representation by our U.S. Congress has created a total breakdown of the American judicial system for our poorer Americans because the our U.S. Courts punish all of us little people if we are not assisted with proprer legal counsel.

*It is a known fact that our average Middle Class and Working Poor Americans without proper legal representation in all of our American Courts of law lose their legal cases to the better financed who are able to afford lawyers.

Lawyers For Poor Americans is now actively in the hunt for International Countries and Leaders Worldwide to help raise 5 Billion Dollar$ for our slighted poorer Americans who have had their own American Congress turn their backs on their desperate needs in not affording them proper legal representation.

Troy Davis and Mumia Abu ~ Jamal are 2 perfect examples of American citizens who never had proper legal representation or defense investigations afforded them by our U.S. Congressional Leaders Of The Free World in their initial criminal trials in (Georgia and Pennsylvania) who might very well have to pay the ultimate price of possibly being completely innocent and falsely executed in the near future.

These two poorer Americans are among tens of thousands of legal cases nationwide that never were afforded proper legal representation or proper defense investigations at their initial trials.**We the public really have no idea if these men are innocent or guilty until they both are given fair legal representation at their new future trials.

Improper murder trials and needless deaths due to the lack of healthcare take place in Third World Countries all the time. *** Why should average Middle~Class and Working Poor Americans in the Wealthiest Country Of The World be treated as if they are living a Third World Life Style ??

This is the first of many www International pleas by Lawyers For Poor Americans for other leaders and countries to help raise the needed monie$ to correct these blatant injustices that have been inflicted on poorer Americans for the last few decades.

Lawyers For Poor Americans has many other written articles that can be viewed with any www search engine by our name or our telephone number. Lawyers For Poor Americans is a www lobby group of volunteers that sing out about the decades old neglect,abuse and injustices being inflicted on our poorer Americans that have become Crimes Against Humanity issues for the International World Court to investigate.

lawyersforpooreramericans@yahoo.com (424-247-2013)


DOUGLASFIELD
Comment posted September 17, 2009 @ 9:43 pm

* THE FINE ART OF DENYING 45 MILLION AMERICANS HEALTH~CARE IN OUR JUDEO~CHRISTIAN NATION IS ONLY THE START IF THIS CURRENT SUPREME COURT…

AMERICAN RELIGIOUS LEADERS ALL ACROSS THE USA HAVE ALWAYS BEEN ABLE TO COUNT ON THEIR RELIGIOUS FLOCK TO CONTRIBUTE(TITHE)THEIR HARD EARNED MONIES TO THEIR MINISTRIES EVERY WEEK.

THE MAJORITY OF AMERICANS ATTENDING RELIGIOUS SERVICES IN THE U.S. ARE MIDDLE~CLASS AND WORKING POOR CITIZENS WHO NOW DESPERATELY NEED THE HELP AND SUPPORT FROM THESE SAME U.S.RELIGIOUS LEADERS IN LOBBYING THE U.S.CONGRESS TO PROVIDE PROPER HEALTH~CARE FOR ALL POORER AMERICANS.

THERE ARE CURRENTLY AN ESTIMASTED 45 MILLION MEN WOMAN AND CHILDREN WITHOUT HEALTH~CARE IN THE WEALTHIEST COUNTRY IN THE WORLD????

***SILENT AMERICAN RELIGIOUS LEADERS WHO ALL HAVE HEALTH~CARE FOR THEMSELVES AND THEIR FAMILIES IS MUCH MORE FRIGHTENING THEN THE POSSIBLE DENIAL OF A FUTURE HEALTH~CARE PLAN FOR ALL…

LAWYERS FOR POOR AMERICANS
(424-247-2013) lawyersforpooreramericans@yahoo.com


louis vuitton
Comment posted July 2, 2010 @ 7:36 am

We must all rally and tell the US Supreme Court that if they do overturn these campaign finance laws they are committing treason on the highest levels. Not only will it give corporations unlimited access to our political but it will give the foreign governments that have stakes in those companies unlimited access to our political system. Those conservatives who are supposed to protect our constitution will be shutting millions of people out of the political process.


louis vuitton handbags
Comment posted July 25, 2010 @ 7:22 am

Not only will it give corporations unlimited access to our political but it will give the foreign governments that have stakes in those companies unlimited access to our political system. Those conservatives who are supposed to protect our constitution will be shutting millions of people out of the political process.


Discount Louis Vuitton
Comment posted August 20, 2010 @ 8:09 am

Those conservatives who are supposed to protect our constitution will be shutting millions of people out of the political process.


Choosing SEO Packages
Comment posted September 2, 2010 @ 2:21 pm

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Gainesville Accounting
Comment posted September 4, 2010 @ 8:22 pm

One would think that all private citizens would be concerned, but so little has been written about the true implications of this case that I suspect that most are woefully ignorant of this case. I can hear the argument, that we still get to vote as singular individuals, so our rights aren't being taken away, but see what the corporations did for the Health Care Reform debate and then tell me that the politicians are not swayed by both political contributions (for their individual campaigsn) and the all the rhetoric paid for by these corporations…who are only looking to protect themselves (and their stockholders).


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Pingback posted September 28, 2010 @ 12:02 pm

[...] 8.Supreme Court Eyes Decades of Campaign Finance Laws « The WHEN WILL OUR WEALTHY ELITE AMERICANS ABATE THEIR ASSAULT ON POORER AMERICANS WITH THEIR MONETARY CONTROL OF OUR IVORY TOWER U.S. CONGRESSIONAL LEADERS OF THE … How awful if the Supreme Court reversed the laws that were written to restrict powerful interest groups from having an undue influence on the political process. http://washingtonindependent.com/57983/supreme-court-eyes-decades-of-campaign-finance-laws [...]


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