It is important to note that the case reargued today does not affect the core of the McCain-Feingold campaign finance law – the ban on large, unregulated donations to the political parties by corporations, unions and wealthy individuals. Nonetheless, at stake in this case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are called into question. Overturning the Austin decision would open the floodgates to unlimited corporate spending during elections and undermine election laws across the country. Those able to spend tens of millions of dollars, like a Fortune 500 company, are much more likely to be heard during an election than average American voters.

It was just six years ago that the Supreme Court upheld the electioneering communications provision in McCain-Feingold and nothing has happened in that time to warrant the drastic step of overruling that decision. During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent. If he casts the deciding vote to overrule Austin and McConnell, it would completely contradict that promise, and could have serious consequences for our democracy.

If supporters of federal curbs on political campaign spending by corporations were hoping that Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., would be hesitant to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for restraint, the strongest impression was that they had not convinced the two members of the Court thought to be still open to an exercise in modesty. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

Responding to a question about what he’d predict the outcome of the case to be, Pearson said:

All we have to go on is a very short Court statement.  Broadening the issue at stake — beyond what the parties argued and the what’s in the factual record  – is a radical step, raising serious concerns about whether the Roberts court will be an activist court and turn its back on principles of stare decisis, or respecting precedent.

The vote of the Court’s newest justice on that issue, however, may be more predictable.

Although the issue in the case was originally relatively narrow — whether an “on-demand” video ought to be subject to the same restrictions as broadcast campaign advertising — the Supreme Court has asked both sides to re-argue the case next week, to answer a far more controversial and significant question: should the Court reverse its previous restrictions on corporate campaign financing on First Amendment grounds?

Justice Sonia Sotomayor, once a lawyer on New York City’s Campaign Finance Board who implemented campaign finance restrictions, isn’t likely to vote in favor of reversing those longstanding federal restrictions on corporate spending. She’s written in favor of restricting corporate spending on campaigns, such as in this law review article, where she wrote:

We would never condone private gifts to judges about to decide a case implicating the gift-givers’ interests. Yet our system of election financing permits extensive private, including corporate, financing of candidates’ campaigns, raising again and again the question what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate. Can elected officials say with credibility that they are carrying out the mandate of a “democratic” society, representing only the general public good, when private money plays such a large role in their campaigns?

In the one campaign finance matter that confronted her as a judge on the Second Circuit, Sotomayor voted to allow a Vermont campaign finance spending limit to stand, although her vote was based on a procedural issue, not the merits of the law. The Supreme Court eventually overturned the Vermont restrictions.

Of course, Justice David Souter, whom Sotomayor replaced, generally favored restrictions on corporate campaign spending as well, so Sotomayor’s position isn’t likely to swing the court in a different direction.

Justice Samuel Alito, Jr. and Chief Justice John Roberts, however, are skeptics of campaign finance regulations and could lead the court’s conservative wing toward tossing out longstanding laws restricting corporate spending on political campaigns. The conservatives on the court — oddly joined by the ACLU — see such rules as restrictions on freedom of speech.

Following a Newsweek report that the commission flagged some donors to Sen. Barack Obama for exceeding contribution limits with numerous small donations using fake names,  Sean Cairncross, RNC chief counsel, yesterday accused the Obama campaign of “looking the other way” on excessive contributions. Newsweek reported the Obama campaign has since returned the donations in question. From the Post:

The FEC sent a letter to Sen. John McCain’s campaign treasurer Sept. 30 demanding the candidate turn over more information about “contributions that appear to exceed the limits.”

The letter is accompanied by a nine-page list showing scores of overages from [Sen. John] McCain’s August campaign finance report, including nearly $13,000 from Texas rancher Ray R. Barrett Jr.; $9,200 from an Iraqi security consultant, H. Carter Andress; and $5,000 from Joseph F. Davolio, an executive at a major national liquor, beer, and wine distributor.

“Please inform the Commission of your corrective action immediately in writing and provide photocopies of any refund checks and/or letters reattributing or redesignating the contributions in question,” the letter from the FEC’s senior campaign finance analyst, Leah S. Palmer, says. “The acceptance of excessive contributions is a serious problem.”

It appears that the Newsweek article comes at a very convenient time for the McCain campaign — it lent a little political cover to lessen the blow from a potentially embarrassing revelation.

However, there seems to be a pattern developing here:

Remember McCain’s attacks on Obama for being beholden to Fannie Mae — while several of McCain’s closest advisers and staff members lobbied on behalf of Freddie Mac and the mortgage industry?

Perhaps it is true that the surest sign that the McCain campaign is guilty of something is if it accuses the Obama camp of the same deed.