- The Washington Times - Wednesday, September 9, 2009

A central pillar of federal election law appeared to be crumbling Wednesday as government lawyers faced tough questioning at a special Supreme Court hearing about whether limitations on corporate and union campaign spending violated the First Amendment right to free speech.

The question of whether corporations and unions should be allowed to spend money to help federal candidates was the focus of contentious oral arguments, as the court took the unusual step of cutting into its recess to take up the politically charged case.

The case also marked a milestone for the court as the first session in which newly sworn-in Justice Sonia Sotomayor, President Obama’s first high court nominee, participated.

Election-law experts had predicted the case could bring a dramatic change to campaign finance rules, and undercut a central piece of the 2002 McCain-Feingold law. Twice before, the court under Chief Justice John Roberts had picked off small portions of the McCain-Feingold law and declared them invalid, and going into Wednesday’s arguments, many viewed the case as an uphill battle for the nation’s new solicitor general, Elena Kagan.

Ms. Kagan’s burden became clear early on when she found herself conceding that she was being asked by Chief Justice Roberts to argue less about why the FEC should win the case, and more “about the [least painful] way in which to lose.”

The chief justice called elements of the law “extraordinarily paternalistic,” and compared the government’s role to that of “Big Brother.” At one point he declared he did not want to leave “our First Amendment rights to FEC bureaucrats.”

Justice Sotomayor in her debut seemed almost immediately to be in the minority in the case, Citizens United v. the Federal Election Commission. In her first question from the bench, Justice Sotomayor asked noted First Amendment attorney Floyd Abrams whether changing the law now would “do more harm than good,” a position many campaign finance reformers have taken.

“Your honor, I don’t think you’d be doing more harm than good,” replied Mr. Abrams, representing Senate Republican leader Mitch McConnell of Kentucky, a longtime critic of restrictive campaign financing laws.

In the days leading up to the case, election law specialists believed the outcome would hinge on the opinions of Justices Roberts and Samuel Alito, whose views on campaign finance law has not been as clearly telegraphed in prior cases. Both men hammered away at the positions taken by government attorneys.

When Seth P. Waxman, a lawyer representing Sens. John McCain and Russ Feingold, the authors of the 2002 law, attempted to argue that eliminating the corporate and union spending bans would reverse 100 years of precedent, Justice Alito pounced. He accused Mr. Waxman of reducing his argument to “the sound bites you’re hearing on TV.”

“I don’t mean to be demeaning this court with sound bites,” Mr. Waxman said.

After the arguments, Sen. McCain left the court in disgust, calling the tenor of the justices’ argument “very disturbing.”

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

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