Court re-hears ‘Hillary movie’ case

Wednesday, September 9, 2009

  • Audio (courtesy PBS)

  • Transcript

    WASHINGTON — Discussion in a Supreme Court re-hearing of a campaign-finance case today suggested the justices may let businesses and unions spend freely to help their favored political candidates in time for next year's elections.

    In Citizens United v. Federal Election Commission, which began with a movie attacking Hillary Rodham Clinton's presidential ambitions and could affect future elections, newly seated Justice Sonia Sotomayor jumped right into the questioning. She appeared skeptical about taking the far-reaching step of lifting the ban, a move urged on the high court by a lawyer for a group that made the 90-minute movie that sought to undermine Clinton's presidential ambitions.

    “Wouldn't we be doing more harm than good in a broad ruling?” Sotomayor asked.

    The focus of the case will be on whether two conservatives, Chief Justice John Roberts and Justice Samuel Alito, are willing to overrule earlier decisions that had upheld the restrictions.

    Both justices spoke at length in their Senate confirmation hearings about the importance of abiding by precedents — even if they would have voted the other way had they been involved in an earlier decision.

    During today's unusual re-hearing of the case, Alito questioned the basis for blocking corporate and union campaign donations. More than half the states, including California, Washington and Virginia, allow corporations to make independent campaign expenditures.

    “Have they all been overwhelmed by corruption?” Alito asked.

    Roberts seemed to suggest he was prepared at least to scale back restrictions.

    “We don't trust our First Amendment rights to FEC bureaucrats,” said the chief justice. The Federal Election Commission oversees the enforcement of campaign-finance laws.

    Justice Stephen Breyer expressed doubts about rolling back the requirements. He suggested that to do so might “make a hash” of campaign finance reforms enacted by Congress in 2002.

    “Robust debate … is the most fundamental value” protected by the First Amendment of the U.S. Constitution, argued Theodore Olson, the attorney representing Citizens United, the conservative group that made the movie. Olson said the government in this case “has prohibited speech.”

    The Web site Scotusblog reported that the hearing lasted 93 minutes. The justices had asked the parties in the case to prepare arguments not presented at the earlier hearing in March concerning two earlier Supreme Court campaign-finance cases and whether they should be overturned: Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003). Also at stake are restrictions in the McCain-Feingold campaign-finance law.

    Citizens United began as a dispute over whether “Hillary: The Movie” should be regulated as a campaign ad. But it took on greater significance after the justices decided to use the case to consider whether to ease restrictions on how corporations and labor unions may spend money to influence elections.

    Besides Roberts and Alito, the other three conservative-leaning justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, are on record opposing the restrictions on corporations and unions. Restrictions on corporations have been around for more than 100 years; limits on unions date from the 1940s.

    Kennedy, often the high court's swing vote, and a firm opponent of many campaign restrictions, at one point told the government's lawyer, “Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.”

    Citizens United 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 movie was advertised on the Internet, sold on DVD and shown in a few theaters. Campaign regulations do not apply to DVDs, theaters or the Internet.

    The film is filled with criticisms of the former first lady, whom President Barack Obama defeated in the primaries and then made his secretary of state. It includes Dick Morris, a former adviser to President Bill Clinton who is now a Clinton critic, saying the one-time candidate is “the closest thing we have in America to a European socialist.”

    In oral arguments in March, Alito expressed alarm that a book funded by corporate or union money could also be banned if the movie were.

    Olson said Citizen United's status as a not-for-profit corporation should have no bearing on its freedom to speak because the Court has repeatedly held that corporations are like people when it comes to the First Amendment.

    Lawyer Floyd Abrams, a longtime First Amendment advocate, argued on behalf of McConnell.

    Solicitor General Elena Kagan, making her first high court argument, and a former Solicitor General, Seth Waxman, representing McCain and Feingold, stressed the long history of federal laws that sought to rein in corporate and later union influence on elections, beginning with President Theodore Roosevelt's trust-busting push early in the 20th century.

    “For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment,” Kagan said.

    Justice John Paul Stevens, the wily leader of the Court's liberals, appeared to be searching for a narrow way out of the case that would preserve most limits on corporations and unions. But no one on the conservative side seemed interested.

    Kagan, too, acknowledged that the government was unlikely to win the case outright and that the best it could do was hope for a ruling that might apply only to ideological groups like Citizens United.

    “If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes,” she said.

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