‘Hillary movie’ case: courtroom drama

Friday, September 4, 2009

WASHINGTON — The stage is set for a dramatic Supreme Court re-examination of the constitutionality of campaign-finance regulation under the First Amendment in the “Hillary movie” case.

The justices will meet in special session Sept. 9 for a rehearing of Citizens United v. Federal Election Commission — a reargument requested by the Court in June to examine whether key precedents upholding restrictions on corporate expenditures in political campaigns should be overturned.

That hint of rejecting established precedent in the 1990 case Austin v. Michigan Chamber of Commerce and in the 2003 ruling in McConnell v. Federal Election Commission jolted the reform movement and energized opponents who have long viewed the corporate restrictions as a form of censorship of political speech during campaigns.

One sign of the high stakes in the re-do of Citizens United is that 41 “friend-of-the-court” briefs have been filed over the summer in anticipation of the Sept. 9 arguments, whereas only 12 were filed during the first go-round in the spring.

Also heightening the drama is the almost-unheard-of September session — the Court term begins the first Monday in October — and the debut appearance of Justice Sonia Sotomayor and Solicitor General Elena Kagan. Kagan will be making her first oral argument before the Court, with the daunting task of defending the precedents and the McCain-Feingold campaign-finance law that restricts corporate campaign spending.

What's at stake
Overturning the precedents “would unleash the kind of corporate expenditures that we’ve never seen in the past,” says longtime advocate Fred Wertheimer of Democracy 21. Referring to the state of political corruption before Congress legislated in this area more than 100 years ago, Wertheimer said, “We would go back to the days when you would talk about ‘the senator from Standard Oil,’ or ‘the senator from U.S. Steel,’ only now it would be the senator from drug company X or financial institution Y.”

But the current restrictions go too far in restricting speech at a time when it is needed most — during a political campaign — in the view of regulation opponents and some First Amendment advocates. During the first oral arguments in the case in March, Deputy Solicitor General Malcolm Stewart acknowledged that under some circumstances, even a book that criticizes or supports a candidate, if it is funded by a corporation or union, could run afoul of the law.

“That’s pretty incredible,” said Justice Samuel Alito Jr. at the time, and many think it was Stewart’s concession that prompted the Court to order re-argument.

“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,” wrote former solicitor general Theodore Olson in a brief on behalf of Citizens United, his client.

“Sometimes a case helps us see just how far off constitutional course Congress and prior rulings of the Court have taken the nation. This is one of those cases,” wrote noted First Amendment lawyer Floyd Abrams in a brief filed on behalf of Sen. Mitch McConnell, R-Ky., the leading Senate opponent of the McCain-Feingold law. The Court granted Abrams time to argue along with Olson, and it also gave time to former solicitor general Seth Waxman to argue on the other side on behalf of the congressional sponsors of the McCain-Feingold law, part of which is now at stake in the case.

Currently, corporations may participate in federal campaigns only through contributions by executives and others to political action committees, which are regulated with contribution limits and disclosure requirements. But if the Supreme Court overturns precedent in Citizens United, corporations and labor unions could be able to use funds from their treasuries to make independent expenditures in support of candidates of their choice.

Kagan’s brief asserts that such a decision would “fundamentally alter the rules” on corporate participation in campaigns and “would make vast sums of corporate money available for overt electioneering.”

'Hillary: The Movie'
The case began last year over whether a campaign movie critical of then-presidential candidate Hillary Clinton — as well as advertising for and video-on-demand transmission of the movie — amounted to campaign communications that cannot be funded directly by money from a corporate treasury. Citizens United, which produced the movie, is a nonprofit corporation that received direct corporate funding.

In the initial brief to the high court, lawyer James Bopp Jr., the original lawyer for Citizens United, made no mention of the Austin precedent. But once the Court took up the case last November, Olson took over for Bopp and argued that Austin should be overturned. The brief for the Federal Election Commission argued that the issue of overturning Austin was “not properly before the Court” because it had not been dealt with fully in the court below, and occupied only two pages of Citizens United’s brief.

At oral argument in March, however, the broad issue of the constitutionality of banning corporate participation in campaigns seemed to loom large.

Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas have previously indicated they would overturn Austin, and the Roberts Court overall has been hostile to campaign restrictions. The replacement of Justice Sandra Day O’Connor in 2006 with Alito has also tilted the Court away from supporting laws aimed at limiting the effect of money in campaigns. From her record, new Justice Sotomayor is viewed generally as a supporter of campaign-finance regulations, as was her predecessor, David Souter.

Reformists worry
Given this lineup of justices, supporters of campaign regulation face an uphill battle Sept. 9. In their briefs, these advocates are appealing to the Court’s usual reluctance to reverse longstanding precedent, and its deference to Congress as their best hope for avoiding a major loss.

“Overturning Austin and McConnell would require a dramatic break from this Court’s precedent, a dismissal of six decades of election law and a blunt rejection of principles of stare decisis” (following precedent), states a brief on behalf of the Campaign Legal Center, Democracy 21, Common Cause, and other campaign-regulation advocates.

Some briefs also invoke a more recent precedent, Caperton v. A.T. Massey Coal Co. (2009), which involved a large independent expense supporting a candidate for the West Virginia Supreme Court by a party in a pending case. In that decision issued in June, Justice Kennedy said such expenditures can cause a “serious risk of actual bias.” The high court's remedy in that case was the recusal of the judge, not a ban on corporate spending. But the ruling did indicate that Kennedy was troubled by the influence of big money in judicial campaigns, which could be affected if a constitutional ruling in Citizens United invalidated similar state laws against corporate spending.

Overruling the Austin and McConnell precedents “would dramatically skew the future course of the judiciary in America,” argues a brief by Justice At Stake and other judicial reform groups. “To ensure due process, judges must be able to make decisions without looking over their shoulders at wealthy donors whose cases they must decide.”

The Democratic National Committee is also urging the Supreme Court not to disturb its precedents upholding restrictions on corporate spending — especially at a time when “the relationship of corporation to government … is an all-consuming topic in American politics, more so than at any time since the Great Depression.” Giving even more power to corporations to influence policy debates would be a mistake, the committee states. It also notes that the existing campaign-regulatory structure has helped foster the recent rise in importance of small individual donors. In the 2008 election, the brief states, Republican John McCain raised $35 million from small donors, and Barack Obama raised $175 million from small donors.

The Republican Party did not file a brief in the case.

Against restrictions
On the other side, Olson asserts that the Court’s tradition of preserving precedent should not apply to Austin, which he called “poorly reasoned” and a “jurisprudential outlier” that should be overturned. He also points out that 26 states allow the kind of corporate expenses barred in the federal law, and the government is “unable to point to a single incident” in those states where the spending led to corruption.

Bopp, Citizens United’s first lawyer, weighs in on behalf of several former FEC members to argue that although overturning Austin and McConnell would be desirable, it wouldn’t be necessary to resolve the case. He asserts the Court could decide the case more narrowly on the basis of whether the Hillary movie is or should be covered by the expense restriction.

Other groups ranging from the American Civil Liberties Union to the National Rifle Association to the AFL-CIO also argue against the restrictions, with the labor group calling it “an unworkable censorship regime.”

The libertarian Institute for Justice, which also opposed the McCain-Feingold restrictions, has issued a list of political books that it thinks could be banned under the government’s theory of the case — books by John Kerry, Michael Moore and Maureen Dowd that took stances in elections.

“Every one of these books takes a position on a candidate’s qualifications for office, just like ‘Hillary: The Movie,’ and every one was published by a corporation,” said Steve Simpson of the Institute for Justice. “Every election season, candidates and their backers and detractors flood stores with similar titles. The question for the government and campaign finance ‘reformers’ is:  Why not ban these books, too?”

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