- The Washington Times - Sunday, September 6, 2009

The U.S. Supreme Court will cut into its summer recess Wednesday to hear arguments on the most serious legal challenge in decades to the rules that govern how political campaigns are financed.

The case, brought by the producers of the 2008 campaign documentary “Hillary: The Movie,” has emerged as a showdown between those who think corporations and labor unions need to be restrained from using their immense wealth to influence the outcome of elections, and those who think it is wrong to impose restrictions on who can spend money on behalf of a candidate for office.

Many experts predict the case, Citizens United v. Federal Election Commission, could lead the court to strike down decades-old restrictions that have prevented corporations and labor unions from spending money to run their own ads urging voters to support or oppose a particular candidate.

Beyond the significant implications for the way campaigns are financed, the case is the first to be heard by new Justice Sonia Sotomayor. It is the first to be argued by new Solicitor General Elena Kagan. And she will square off against former Solicitor General Theodore Olson, who argued the other side of the law six years ago when he was serving as the government’s lawyer.

And it is being viewed as an important test of the court’s willingness, under Chief Justice John G. Roberts Jr., to cast aside earlier decisions that may no longer hold favor with the court’s more conservative majority.

But those novelties are of less interest to the politicians and lawyers who have waged a long-running battle over the rules that govern the way money can be spent during a campaign.

To them, this case has emerged unexpectedly as a major battle between two long-conflicting philosophies. It began as one in a series of narrow challenges to a sliver of the McCain-Feingold law that prohibits corporations from airing advertisements during a campaign that refer directly to a candidate for office. The producers of “Hillary: The Movie” wanted to air commercials for their film and broadcast the movie using cable-on-demand services, and they went to court to clarify that the law governing traditional campaign ads should not apply to them.

But during a first round of oral arguments in March, the justices’ interest migrated from the specifics of the case to the broad implications of restricting corporate donations. The most startling moment came when the justices asked whether the ban on corporate advertising could theoretically be extended not only to movies, but to the Internet or books.

Deputy Solicitor General Malcolm Stewart hazarded a guess that, theoretically, it could.

“That’s pretty incredible,” Justice Samuel A. Alito Jr. responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

Mr. Stewart said that if a corporation or union paid for it, then it might be possible to “prohibit the publication of the book using the corporate treasury funds.”

The justices’ decision to call for new arguments and convene a rare early session sent a signal to campaign-finance experts that they were contemplating a major shift in the fundamentals of election law. One of the most significant issues that they may attempt to address is whether a ban on corporate contributions that dates back more than a century and has become the backbone of subsequent cases should be reconsidered.

During the six months of discussion that followed the March hearing, both sides have prepared thousands of pages of arguments to either support or reject the notion that the campaign-finance regulations need to be scaled back.

Fred Wertheimer, one of the architects of the landmark McCain-Feingold legislation that is now under assault, said he could not be more concerned about the idea of paring back the regulations that are now in place. To do so, he said, would expose the country to corruption on a massive scale and would lead to the election of senators who were hand-selected by banks and industrial giants that so often are the subject of legislation or government regulation.

“Corporations will be allowed to spend their immense aggregate wealth in campaigns, and in doing so create a system of potential influence-buying the likes of which we’ve never seen before,” Mr. Wertheimer said.

James Bopp, the lawyer who initially handled the Citizens United case, said he rejects the idea that opening the door to corporate and union spending on behalf of candidates would lead to corruption. He points to the many states whose laws have not precluded corporate and union donors from spending directly on behalf of candidates.

“Isn’t that telling?” Mr. Bopp asked last week during a panel discussion on the case. “We have 20 states with no corporate bans, have had no corporate bans for 200 years,” and there has been no evidence that corporations have gained a corrupting influence. “That means they have no case.”

Other supporters of the legal effort say they welcome the court’s intervention, given the volumes of regulations that now surround the spending of money on elections.

“The field has become so complex that citizens cannot understand it and experts find it difficult,” eight former Republican appointees to the FEC wrote in a brief filed with the court. “The complexity requires citizens to hire specialists to speak. Specialists cost money. Errors risk penalties. Core political activity is chilled.”

Scott Thomas, a former Democratic appointee to the FEC, said he found it ironic that his former colleagues were basing a complaint on the complexity of the campaign-finance regulations.

“First, these very commissioners blocked so many enforcement cases that involved clear-cut ‘express advocacy,’ Congress had to plug the messy loophole they created,” he said.

With the change in makeup of the court, many experts think a challenge of this sort will have its most friendly audience in years, if not ever. Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas already indicated a desire to see the corporate ban overturned. Justices John Paul Stevens, Ruth Bader Ginsberg and Stephen G. Breyer have lined up on the opposite side. In the 2007 campaign-finance case involving the group Wisconsin Right to Life, Justices Roberts and Alito both indicated a desire to see the McCain-Feingold restrictions scaled back.

Around Washington, election lawyers have been staking out guesses about where the court may land. Some think the very decision to turn the Citizens United complaint into a broader inspection of the issue sends a clear signal the court is planning to make a major shift in its reading of the law. Others argue that Justice Roberts, in particular, has been vocal about the need to avoid giving a “jolt” to the historical line of thinking displayed by the court, and so cannot imagine that he will oversee a seismic shift in campaign-finance rulings.

One lawyer eyeing the case closely is Robert Bauer, who represented then-Sen. Barack Obama during his campaign for president. Mr. Obama’s ability to use the Internet to harness the support of individual small donors gave him a significant fundraising edge in 2008, and many think that corporate donors, if allowed to participate, could even the playing field for a Republican challenger.

Mr. Bauer said last week that he thinks the law is in a good place right now. “For a variety of reasons, Internet, political actors have found ways of reaching small donors who were very difficult to reach and mobilize before,” he said. “For this development so long in coming to be unsettled in so violent a way … it is certainly a very destabilizing potential.”

Asked whether he thought a ruling would also be destabilizing to Mr. Obama’s political plans, Mr. Bauer said he was not inclined to speculate. “For me to say what the effect would be would be beyond speculation. It would be a hallucinatory exercise,” he said.

“Everybody who has ever hazarded a guess on how a case would impact politically has been wrong,” he said. “So I’m being asked to be wrong publicly, and I’ll resist that invitation.”

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