Hillary Movie Puts Campaign Finance Limits at Risk
Hillary Movie Puts Campaign Finance Limits at Risk
Saturday, September 5, 2009 9:25 AM
WASHINGTON – The Supreme Court appears poised to wipe away limits on campaign spending by corporations and labor unions in time for next year's congressional elections in a case that began as a dispute over a movie about Hillary Rodham Clinton.
The justices return to the bench Wednesday — nearly a month early — to consider whether to overrule two earlier decisions that restrict how and when corporations and unions can take part in federal campaigns. Laws that impose similar limits in 24 states also are threatened.
The court first heard arguments in March in the case of whether "Hillary: The Movie," a scathingly critical look at Clinton's presidential ambitions, could be regulated as a campaign ad. The emphasis has shifted away from the 90-minute film.
Now the justices could decide whether corporations and unions should be treated differently from individuals when it comes to campaign spending. Restrictions on corporations have been around for more than 100 years; limits on unions date from the 1940s.
Deep corporate and labor pockets and the potential for corruption "amply justify treating corporate and union expenditures differently from those by individuals and ideological nonprofit groups," argued Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., and other sponsors of a major campaign finance law who don't want any significant change to the restrictions.
But former Solicitor General Theodore Olson, who six years ago defended the campaign finance provision he now is challenging, said the limits are strangling corporate and union freedom to speak out.
"Why is it easier to dance naked, burn a flag or wear a T-shirt profanely opposing the draft," Olson said at a Federalist Society event in July, "than it is to advocate the election or defeat of a president? That cannot be right."
Wednesday's unusual session — the court only rarely orders a case to be reargued — also will be the first to include the newest justice, Sonia Sotomayor. In August, the 55-year-old New Yorker became the court's first Hispanic and third female justice ever.
It also will be the first argument for Solicitor General Elena Kagan, a finalist for the high court seat that went to Sotomayor. Yet another former solicitor general, Seth Waxman, is representing McCain and Feingold in an effort to preserve the 2003 provision that tightened limits on ads paid for by corporations and unions and broadcast close to an election.
Kagan, defending the law on the government's behalf, and Waxman will face skeptical conservative-leaning justices, who appear to hold the upper hand on this issue. The court's liberals generally have voted to uphold campaign finance laws. Sotomayor's ascension to the court did not change its ideological balance, giving opponents of the current campaign finance laws hope this court will strike them down.
The court could have decided the case narrowly following arguments on March 24. Instead, on the last day they met before their summer break, the justices said they would consider overruling part of their 2003 decision that upheld major portions of the McCain-Feingold law as well as a 1990 decision that upheld limits on corporate spending in elections.
Three justices on the court now — Anthony Kennedy, Antonin Scalia and Clarence Thomas — already have signed minority opinions that advocated striking down both laws as unconstitutional restrictions on speech. Since the 2003 decision, Chief Justice John Roberts and Justice Samuel Alito have joined the court. Both have questioned the validity of campaign finance laws, but have not yet gone as far as their three conservative-leaning colleagues.
Roberts and Alito made clear during the original arguments how much they worried about the control the campaign finance laws give government over political speech.
"If Wal-Mart airs an advertisement that says, `We have candidate action figures for sale, come buy them,' that counts as an electioneering communication?" Roberts asked government lawyer Malcolm Stewart.
"If it's aired in the right place at the right time, that would be covered," Stewart said.
Stewart later added that campaign finance laws could be applied to mediums such as books and e-books. "That's pretty incredible," Alito said. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?"
Olson picked up on Alito's incredulity in his brief to the court. "Enough is enough. When the government of the United States of America claims the authority to ban books because of their political speech, something has gone terribly wrong and it is as sure a sign as any that a return to first principles is in order," he said.
Olson is representing Citizens United, a conservative not-for-profit group that wanted to air ads for the anti-Clinton movie and distribute it through video-on-demand services on local cable systems during the 2008 Democratic primary campaign.
But federal courts said the movie looked and sounded like a long campaign ad, and therefore should be regulated like one.
The justices could have decided the case on narrow grounds this year, saying for example that movies aired on-demand are exempt from campaign finance laws.
The call for new arguments to address the broader limits on corporate and union spending makes supporters of those laws nervous.
"This has the potential to unleash massive corporate spending," said Democracy 21 president Fred Wertheimer, a longtime proponent of limiting money in politics. "It would be a disaster for democracy."
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