Supreme Court Could Spell End to Restrictions

Posted September 9, 2009 at 6:22pm

The campaign finance reform community was expecting the worst Wednesday after a Supreme Court hearing that could significantly loosen spending restrictions on corporations, trade association and unions in federal elections.

One man is considered key to deciding the high court campaign finance case: Chief Justice John Roberts.

After Wednesday’s oral arguments, at least one campaign finance reform group said it did not like what it heard.

“All eyes are on Roberts,— said Tara Malloy, a Campaign Legal Center lawyer. “We all knew Chief Justice Roberts was skeptical of these laws, and it came across in oral arguments.—

The high court’s associate justices are expected to split along ideological lines, Malloy said.

Liberals Ruth Bader Ginsburg, John Paul Stevens, Sonia Sotomayor and Stephen Breyer are all expected to side with the federal government and campaign finance reformers in the case, Citizens United v. Federal Election Commission.

The case involves a nonprofit organization that asked a court for permission last election cycle to promote and distribute “Hillary: The Movie,— a feature-length production that the group hoped to show on cable television through video-on-demand in the days and weeks before last year’s Democratic primaries.

The high court in June asked to rehear the case, which was originally argued earlier this year.

Conservative Justices Antonin Scalia, Samuel Alito, Clarence Thomas and Anthony Kennedy are expected to side with the conservative group, leaving Roberts the linchpin in deciding whether to overturn a nearly 20-year old decision, Austin v. Michigan Chamber of Commerce, that banned corporate entities from making independent expenditures in federal elections.

In a statement after Wednesday’s hearing, Sens. Russ Feingold (D-Wis.) and John McCain (R-Ariz.) said at “stake in this case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are called into question.—

“Overturning the Austin decision would open the floodgates to unlimited corporate spending during elections and undermine election laws across the country,— they wrote. “Those able to spend tens of millions of dollars, like a Fortune 500 company, are much more likely to be heard during an election than average American voters.—

Both Senators also singled out Roberts in their statement.

“During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent,— the Senators said. “If he casts the deciding vote to overrule Austin … it would completely contradict that promise, and could have serious consequences for our democracy.—

During the hearing, Roberts grilled U.S. Solicitor General Elena Kagan and Seth Waxman, who argued the case on behalf of the agency. Waxman was a solicitor general during the Clinton administration.

“Isn’t it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can’t sell their shares or object in the corporate context if they don’t like it?— Roberts asked.

“But it is extraordinary. I mean, the — the idea and as I understand the rationale, we — we the government, big brother, has to protect shareholders from themselves,— he continued. “They might give money, they might buy shares in a corporation and they don’t know that the corporation is taking out radio ads.—

Democracy 21 President Fred Wertheimer declined to discuss specifics on the case but said, “We’ll see what comes next.—

“We have a powerful case here that covers a 100 years of national policy and a number of past Supreme Court decisions that have recognized the great dangers for the democratic process and Washington decision making if corporations are permitted to use their immense wealth on spending to elect and defeat federal candidates,— Wertheimer said.