- The Washington Times - Thursday, September 10, 2009

A majority of Supreme Court justices sharply challenged a central element of federal election law Wednesday, with Chief Justice John G. Roberts Jr. taking the lead in aggressively questioning whether long-standing restrictions on corporate and union campaign spending run afoul of the First Amendment right to free speech.

With Justice Sonia Sotomayor making her high court debut, the chief justice was unrelenting in his exchanges with new Solicitor General Elena Kagan, calling elements of the law “extraordinarily paternalistic” and comparing the Federal Election Commission’s role in regulating campaign spending to that of Big Brother.

“We don’t put our First Amendment rights in the hands of FEC bureaucrats,” the chief justice said.

The ban on corporate and union money was the focus of contentious oral arguments in a case that began as a much smaller squabble over a political documentary released during the 2008 Democratic primary campaign called “Hillary: The Movie,” which sharply criticized candidate Hillary Rodham Clinton.

The court took the unusual step of interrupting its recess to take up the politically charged case, providing Justice Sotomayor, President Obama’s first high court nominee, her first opportunity to take a seat on the bench and wade into the fray with questions.

Election-law analysts have been predicting that the case will pose a serious threat to existing campaign-finance rules and could undercut a central piece of the 2002 Bipartisan Campaign Reform Act, also known as the McCain-Feingold law after its Senate co-sponsors. The court under Chief Justice Roberts has twice struck down small portions of the law. Going into Wednesday’s arguments, many viewed this broader challenge as an uphill battle for Ms. Kagan, who argued the case on behalf of the Obama administration’s Justice Department.

Sen. John McCain, Arizona Republican, and Sen. Russ Feingold, Wisconsin Democrat, were in the Supreme Court chambers for the arguments, as was Senate Minority Leader Mitch McConnell, the Kentucky Republican who is a leading critic on Capitol Hill of the current campaign-finance restrictions.

Mr. McCain, walking briskly down the court’s marble steps after the hearing, called the tenor of the justices’ remarks “very disturbing.”

“I just wish one of these critics on the Supreme Court had ever run for county sheriff,” Mr. McCain said.

Ms. Kagan’s burden became clear early into her 30-minute appearance when she conceded to Chief Justice Roberts that her argument was as much about limiting the damage should the FEC lose the case.

“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,” Ms. Kagan said.

This was the second time the court has heard arguments in the case, Citizens United v. the Federal Election Commission, which initially focused on a much narrower section of McCain-Feingold that prohibits “independent” advertising during the final weeks of a campaign if the ads specifically target a candidate.

Citizens United argued that it should be permitted to air commercials for its documentary even though a presidential primary was looming, and it therefore fell within the time frame when the ad prohibition was in effect.

But the case took on broader implications in March, when the justices asked whether the ban on corporate advertising could be extended to movies, as well as to the Internet or books. Deputy Solicitor General Malcolm Stewart hazarded a guess at the time that, theoretically, it could.

The justices were eager to revisit that topic Wednesday. Ms. Kagan said, “The government’s answer has changed.”

The law does not apply to books, Ms. Kagan said, but it might apply to pamphlets. Because it was unclear, she suggested, the topic was ripe for a future legal challenge.

That brought a rebuke from Justice Samuel A. Alito Jr., who questioned how anyone could be expected to know what types of electioneering a corporation or union could legally finance.

“In light of your retraction,” Justice Alito said, “I have no idea where the government would draw the line with respect to the medium that could be prohibited.”

Theodore B. Olson, who represented Citizens United, said Ms. Kagan’s acknowledgment demonstrated that the laws are so muddled that his client would have no way of knowing whether the disputed ads represented constitutionally protected speech or would leave the group open to prosecution.

Justice Sotomayor seemed almost immediately to be in the minority in her debut case.

In her first question from the bench, she raised an issue that has been central to campaign reformers that the court’s decision to consider a broader challenge to campaign-finance laws was abrupt, ignored long-standing precedents and ran afoul of the court’s normal deliberative process.

She asked First Amendment lawyer Floyd Abrams whether changing the law now would “do more harm than good.”

“Your honor, I don’t think you’d be doing more harm than good in vindicating the First Amendment rights here, which transcend that of Citizens United,” replied Mr. Abrams, who was representing Mr. McConnell.

Court watchers say the outcome will hinge on the opinions of Chief Justice Roberts and Justice Alito, whose views on campaign-finance law have not been clear in prior cases. Justice Alito replaced Justice Sandra Day O’Connor, who had served as the decisive fifth vote in fending off several challenges to the McCain-Feingold law.

But any thought that either justice could step in and save the law appeared to evaporate as they hammered away at the positions taken by government attorneys.

Ben Ginsberg, a veteran campaign lawyer, said after the session ended, “I think they are pretty unsympathetic to the notion of keeping the statute the way it is.”

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