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Role of Corporate Money in Politics at Stake in Special Supreme Court Argument

BY Quinn Bowman  September 9, 2009 at 12:00 AM EST

The Supreme Court

The decision to rehear arguments in the case and expand the reach of precedent being considered could have a dramatic effect on how elections are financed in the United States and potentially open the federal election process to more corporate money.

Today the court heard arguments in the case of Citizens United vs. Federal Election Commission, which was brought when Citizens United, a nonprofit organization, tried to air their anti-Clinton movie, “Hillary: The Movie” on cable and pay-per-view networks, as well as ads for the movie in other venues.The FEC ruled that federal law prohibited airing of the movie.

Listen to the full audio recording of the argument:

 

A federal court panel ruled that distribution of the movie violated a provision of the McCain-Feingold campaign finance law banning corporate-funded election communications 60 days before an election.Citizens United took corporate donations and failed to disclose other contributors who helped pay for the movie.

Supreme Court justices decided after the first argument in March that they needed a special new hearing for the case and they would focus on the broader concept of the constitutional basis for laws that regulate how corporations are allowed to express political speech.

In the New York Times’ Room for Debate blog, Loyola law professor and co-editor of the Election Law journal Richard Hansen wrote that the court will now consider overturning two campaign finance decisions.

“It appears that the two ‘swing Justices’ in this case — Chief Justice (John) Roberts and (Samuel) Justice Alito — are ready to consider overturning the two earlier cases — Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003) — upholding limits on federal election spending from corporate treasuries,” Hansen wrote.

Overturning those precedents could allow more corporate money to directly influence federal elections.

Hansen added that the decision to hear a reargument in the case is “audacious,” in that it ignored a court rule to interpret federal statutes when possible to avoid answering constitutional questions – the court could have ignored the First Amendment implications by ruling that video-on-demand movies weren’t covered under the McCain-Feingold act.

On Scotusblog, reporter Lyle Dennison wrote that the new briefs filed by both sides in the case on July 24 “go to the heart of why government could or would impose restrictions on the political activity of corporations.”

“On what theory, the two sides debate, can the government impose such limits? And, how does that theory square with the fact that corporations do have — to some degree, at least — a constitutionally protected voice to speak on political questions?” Dennison wrote.

“The most important right we have in a democracy is the right to participate in the electoral process. We’ve smothered that right with the most incomprehensible, burdensome, unintelligible set of regulations and laws, some of which are criminal laws, surrounding that freedom. That’s intolerable,” Ted Olson, the former solicitor general for the Bush administration, who will be arguing the case, told the Times.

Olson will argue that corporations are individuals, under the Constitution, and should be able to express their views.

He faces off against the new U.S. Solicitor General Elena Kagan, who is expected to counter that election law in the United States has been built on the notion that corporations and unions cannot use their general funds to elect or defeat a candidate because individual shareholders and union members may not want the money spent that way, and because the large amount of money would skew and corrupt the system.

The case will also be the first heard by new Associate Justice Sonia Sotomayor, who was sworn in September 8, 2009.