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EDITORIAL: Supreme Court to decide whether to reshape how campaign finance is regulated
Sep 12, 2009 (Fort Worth Star-Telegram - McClatchy-Tribune Information Services via COMTEX) --
The electorate's about to see how modest Chief Justice John Roberts' court really is. In a case that started out as a dispute over a movie about presidential candidate Hillary Clinton, the Supreme Court just held an unusual second round of arguments to decide whether to reshape the way campaign finance is regulated.
The justices rarely hear arguments in a case more than once, and even less often in a special session outside the regular October-June term. But in Citizens United v. Federal Election Commission, the court asked lawyers to debate something the litigants hadn't raised: whether to overturn decisions that limit corporate spending to influence federal elections.
The justices also heard from lawyers for Sens. John McCain and Russ Feingold, authors of the campaign-finance law whose electioneering and reporting provisions are at issue, and the law's chief opponent, Sen. Mitch McConnell.
Citizens United is a nonprofit corporation that advocates "traditional American values" such as limited government, free enterprise and national sovereignty.
During the 2008 presidential primaries, the group wanted to distribute what it called a documentary about Clinton by cable TV video-on-demand. The Federal Election Commission said federal law required any "electioneering communication" on TV within 30 days of the primary to be financed through a political action committee, not the group's treasury. The FEC also said Citizens United had to report donors of $1,000 or more in ads for the movie.
The group argued that Hillary: The Movie wasn't a campaign ad and shouldn't be subject to the disclosure requirements.
During arguments Wednesday, the complexity of balancing free-speech rights with corruption-free elections was evident.
New Justice Sonia Sotomayor wondered why the court couldn't rule narrowly on whether the Hillary movie amounted to an attack ad.
Justice John Paul Stevens repeatedly asked about the National Rifle Association's solution: rule that the restrictions don't apply to corporations funded solely by individuals.
Justice Ruth Bader Ginsburg wanted to know whether even mega-corporations with primarily foreign investors should have the same First Amendment rights as individuals: "A corporation, after all, is not endowed by its creator with inalienable rights," she said.
Justice Stephen Breyer said the court might "make a hash of this statute," leaving corporations and trade unions to spend freely right before an election but political parties restrained.
The FEC's main arguments are that Congress has an interest in preventing big money from distorting the electoral playing field and from buying influence with federal politicians. But when the new solicitor general, Elena Kagan, argued that the government also has an interest in preventing corporations from using their treasuries in ways to which shareholders object, Roberts called it an "extraordinary" idea that "we the government, big brother, has to protect shareholders from themselves."
It's not clear why, if government has given businesses protection through the corporate form, it can't also impose campaign-finance rules for a compelling reason. The integrity of federal elections is mighty compelling, and a 30-day window plus a bright light on who's paying for ads would seem fairly reasonable.
Some analyses of the arguments predicted a broad ruling against federal regulations.
But that would have implications for states as well. It was Texas' law banning corporate money in state elections that got former U.S. House Majority Leader Tom DeLay and a couple of associates in trouble on charges that haven't all been resolved.
If there's going to be a retreat from campaign-finance rules primarily because the court has a majority of justices who don't like precedents from 1990 and 2003, there's an obligation to be straightforward about it -- and not pretend that judges don't make value judgments but only passively interpret the law.
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go to http://www.dfw.com. Copyright (c) 2009, Fort Worth Star-Telegram, Texas
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