Supreme Court Majority Critical of Campaign Law Precedents

The Supreme Court appeared poised this morning to overturn or limit precedents that upheld bans on corporate and union expenditures in election campaigns. After an extraordinary 90 minutes of oral argument in Citizens United v. Federal Election Commission, it appeared that four justices -- Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito Jr. -- were ready to vote against the commission, which enforces the ban, on First Amendment grounds. A fifth justice, Clarence Thomas, asked no questions as is his custom, but he has been critical of the precedents in the past and is counted as a sure vote against most forms  of campaign regulation.

Justice Kennedy, who often plays a swing vote role, spoke repeatedly of "an ongoing chill" on the speech of corporations and other harms caused by the McCain-Feingold law that banned independent corporate spending on campaigns. Alito, also a crucial vote, skeptically asked whether the 27 states that allow corporate expenditures in their campaigns have been "overwhelmed with corruption." And Roberts seemed hostile to government arguments, asserting that the protection of First Amendment rights should not be placed in the hands of "FEC bureaucrats."

As Roberts' comment indicates, former solicitor general Theodore Olson appeared to have gained the upper hand with his argument that corporations are entitled to the same protection under the First Amendment as individuals when it comes to participating in elections. Olson was arguing on behalf of Citizens United, a non-profit corporation that was thwarted by the ban in distributing a documentary hostile to Hillary Clinton before the 2008 election. After the case was first argued in March, the Court ordered the dispute re-argued on a broader question of whether the Court's precedents on the issue in Austin v. Michigan Chamber of Commerce and McConnell v. FEC should be overturned.

The unusual session of the Court marked the first appearance on the bench of new Justice Sonia Sotomayor. She did not hesitate to ask questions on her first day, challenging Olson on the lack of a full record on the issue, which she implied was necessary before the Court should rule broadly.

Solicitor General Elena Kagan also made her oral argument debut on Wednesday, with a forceful presentation that parried hostile questions from Roberts and Scalia among others. Significantly, Kagan told the Court that "the government's answer has changed" on whether the McCain-Feingold law would allow a book published by a corporation to be banned. During the March arguments Deputy Solicitor General Malcolm Stewart had acknowledged that books could violate the law under some circumstances -- an admission that appeared to shock some justices. Kagan told the Court that the justices' reaction has caused her to reexamine the situation "very carefully," and she said the part of the law at issue would not apply to books -- and furthermore that there has never been an enforcement action against a book. Stewart sat with Kagan at counsel's table.

Footnote: Kagan's appearance at the Court also answered a question that has been a matter of debate within her office and among commentators ever since she became the first female solicitor general in the nation's history: whether she would wear the morning coat with tails that male SGs have worn for generations. Kagan did not wear a morning coat to Wednesday's argument, instead sporting a businesslike black pantsuit with an open-collared white blouse. As she said in this interview with us in May, the decision whether or not to break with tradition was "complicated" but the Court had signaled to her that the decision was hers to make. Some traditionalists argued in favor of the special garb, which they say underscores the unique status of the solicitor general before the Court. Some but not all female assistants and deputies in the SG's office, as well as the Court's marshal Pamela Talkin and women in the Court clerk's office wear morning coats specially tailored for women.

Comments

[Hannah]

McCain-Feingold is not "unconstitutional." The Framers reserved free speech protection for "people," not for whatever other fictional or non-human entities our Congress and courts might later invent. The view articulated by Justices Ginsburg and Sotomayor is much more in keeping with what the Constitution says, (as explained here: http://theusconstitution.org/blog.history/?p=1309).

[Jackson]

Sounds as though we are embarking upon an ever bigger and better Plutocracy. Celebratory champaigne is called for in the Board Rooms everywhere, with a huge toast for Olson, the hero of Bush v. Gore.

[Aaron]

he never categorically said "I will never overturn precedent." Even precedent itself recognizes the value of good precedent; while also allowing for overturning bad precedent.

This is great news. Hopefully Kennedy will come through. McCain-Feingold is unconstitutional.

[Scott Ross]

When Roberts does the opposite of what he told the Judiciary Committee in his confirmation hearing (reaching out to overrule precedent), will he be investigated for perjury?