THE PROGRESSIVE REVIEW – September 14, 2009

Supreme Court hears arguments for corporate funding of
candidates

Big companies, industries and possibly unions may be
allowed to fund ads for and against candidates. A decision
could reshape American politics starting with the 2010
congressional campaign.

By David G. Savage
The Los Angeles Times

Reporting from Washington – The Supreme Court’s conservative
bloc sounded poised Wednesday to strike down on free-speech
grounds a 102-year-old ban against corporations spending
large amounts of money to elect or defeat congressional and
presidential candidates.

If the justices were to issue such a ruling in the next few
months, it could reshape American politics, beginning with
the congressional campaign in 2010. Big companies and
industries — and possibly unions as well — could fund
campaign ads to support or defeat members of Congress.

For example, the health insurance industry would have a
much greater ability to target for defeat lawmakers who
supported a so-called public option for medical insurance.
Banks and investment firms could oppose representatives
who favored stricter regulation of the financial industry.

And far more money could flow into elections. Last
year, the political parties spent about $1.5 billion on
campaigns, while corporations earned more than $600 billion
in profits.

Since 1907, federal law has prohibited corporations from
giving money to candidates. And since 1947, corporations
and unions have been barred from spending money on their
own to urge voters to elect or defeat federal candidates.

Of course, corporate executives, as individuals, can
contribute money to a corporate political action committee,
or PAC, but these amounts are modest compared with the
funds available to corporate treasuries.

At least 24 states (California not among them) have similar
bans on corporate spending in state races.

All of those spending limits have come under growing legal
attack from conservatives and libertarians who say that
the government should not be allowed to set limits on
campaign spending and electioneering, even when corporate
or union money is in play.

Three justices — Antonin Scalia, Anthony M. Kennedy and
Clarence Thomas — have already said that they would vote
to overrule past decisions that upheld federal and state
restrictions on corporate election spending.

Chief Justice John G. Roberts Jr. and Justice Samuel A.
Alito Jr. also have said they favor free speech over
the campaign funding limits. But they have not yet said
whether they would go along and give corporations a free-
speech right to spend on campaign ads.

That was the issue before the court Wednesday. It was a
rare reargument in the seemingly narrow case of a small
nonprofit group called Citizens United.

The organization had produced an anti-Clinton video called
“Hillary: The Movie,” which was designed to undercut her
2008 campaign for the presidency. However, it got tied up
in a legal battle with the Federal Election Commission.

Because Citizens United is incorporated and received a
small amount of corporate money, the group and its movie
came under FEC regulation. Any amount of corporate money
can trigger regulatory action under the election laws.

In March, the justices debated whether the law should
apply to a nonprofit group that produced a campaign-related
video. But rather than decide that narrow question, the
justices said in June that they would focus instead on
whether to say that all corporations, like individuals,
had a right to spend freely to elect or defeat candidates.

Washington lawyer Theodore B. Olson, solicitor general
under President George W. Bush, pressed the justices to
rule broadly.

“Corporations are persons entitled to protection under the
1st Amendment,” said Olson, who represented Citizens United.

It was the first argument for Justice Sonia Sotomayor, and
she wasted no time in challenging Olson. She noted that in
March, Olson had said his client would be a winner with a
narrow ruling saying that a small nonprofit group cannot
be regulated by the FEC.

“Mr. Olson, are you giving up on your earlier arguments
that there are ways to avoid the constitutional question
to resolve this case?” she asked.

Olson said that he would be glad to win narrowly, but he
continued to press for a broader ruling.

“Wouldn’t we be doing some more harm than good by a
broad ruling in a case that doesn’t involve business
corporations?” Sotomayor asked later.

It was also the first argument for Solicitor General Elena
Kagan, President Obama’s top courtroom lawyer. She strong-
ly defended the corporate spending restrictions in the
face of steadily skeptical questions from the court’s
conservatives.

When Scalia said the court should be suspicious of Congress
because lawmakers were inclined to protect themselves,
Kagan said he had it exactly backward. Freeing corporations
and unions to support candidates would help the incumbents,
not hurt them.

“They want winners,” she said. “Corporate and union money
[would] go overwhelmingly to incumbents,” she said.

Roberts tangled with Kagan through much of her argument.
“We don’t put our 1st Amendment rights in the hands of FEC
bureaucrats,” he said.

Sens. John McCain (R-Ariz.) and Russell D. Feingold
(D-Wis.), cosponsors of the 2002 campaign funding law,
were in the courtroom and listened intently to the
90-minute argument. The ruling could strike down part
of the McCain-Feingold Act that restricted corporate
and union-funded election ads in the months before an
election.

Seth Waxman, a former Clinton administration lawyer,
represented McCain and Feingold in the argument. It would
be “truly extraordinary” for the justices to reject 100
years of election law, Waxman said, particularly in a case
that could be resolved through a narrow ruling.

The court will meet behind closed doors later this week to
vote on the case. A decision could come within a few months.

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