Analysis: Two precedents in jeopardy

By Lyle Denniston
on Sep 9, 2009 at 11:55 am

Analysis

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question.  Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach.  At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

The Court probed deeply into Congress’ reasoning in its decades-long attempt to restrict corporate influence in campaigns for the Presidency and Congress, in a special sitting to hear a second time the case of Citizens United v. Federal Election Commission (08-205).  At issue was whether the Court was ready to overturn two of its precedents — one from 1990, the other from 2003 — upholding such limitations.

From all appearances, not one of the nine Justices — including the newest Justice, Sonia Sotomayor — appeared to move away from what their positions had been expected in advance to be. In her first argument, Sotomayor fervently joined in the effort to keep any resulting decision narrow — seemingly, the minority position but one she had been assumed to hold.

Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind. 

That lineup has always put the focus, as the Court volunteered to take on new constitutional questions in the Citizens United case, on the Chief Justice and Justice Alito.  While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections.  None of those arguments seemed to appeal to either Roberts or Alito.

The Court will now proceed in private to work on a final decision in the case, in coming weeks.  Although the case was heard again in an unusual session interrupting the Court’s summer recess, no one expects a final ruling to emerge until after the new Court Term formally opens on Oct. 5.  After Wednesday’s hearing, the Court’s Marshal gaveled the Court back into recess until that first Monday in October. Still, the Court presumably will cast an early, preliminary vote on Citizens United, so that drafting of opinions can begin promptly.

Chief Justice Roberts allowed the hearing to run 13 minutes longer than the scheduled session, already planned for longer than usual, because the Justices were heavily engaged in questioning four lawyers — two on each side of the question of overruling Austin v. Michigan Chamber of Commerce (1990) and McConnell v. FEC (2003).   Two former U.S. Solicitors General, the new SG — Elena Hagan — and the country’s leading free speech advocate — Floyd Abrams – argued energetically, yet seemed to have left the Court where it already presumably was.

As the hearing unfolded, it had the same overall feel that the Court had exhibited last Term when it seemed to be on its way to striking down a major civil rights law’s key provision on voting rights for minorities.  However, the Court then wound up ruling narrowly in that case — Northwest Austin Municipal Utility District v. Holder — when there apparently was no actual majority for a bold nullification of the voting law (the Voting Rights Act of 1965).  On Wednesday, there was no hint that a Court majority would back off this time, but that conceivably could happen.

The Chief Justice was somewhat slow to get involved, but then became one of the most active questioners, especially when the Solicitor General was defending the prior precedents and Congress’ long-running effort to keep corporate money from dominating national politics.  He noted that the government had changed its reasons in favor of such restrictions, and told her flatly that she was attempting to keep the key ruling in Austin intact “on the basis of arguments that we have never accepted” to justify limits on corporations’ political spending.

He also firmly disputed Kagan on her arguments that corporations were different from individuals who have an interest in politics — the basis she offered for treating corporations differently under the First Amendment’s free-speech clause.  She said individuals, unlike corporations, have many interests, not focusing only on their economic interests. “That seems rather odd,” the Chief Justice. “The idea that corporations” don’t have many interests they would pursue in politics, “I just don’t think holds up,” he commented.

And he openly ridiculed her contention that corporations’ political spending had to be curbed in order to protect stockholders who may not share the political positions the corporation was taking.  He said she was making an “extraordinarily paternalistic” argument, akin to arguing that “Big Brother” had to “protect shareholders from themselves.”  The Chief Justice also commented: “We don’t put our First Amendment rights in the hands of bureaucrats.”

In response to her resistance to overruling the Austin precedent, the Chief Justice suggested that, if the Court were to keep its decision narrow this time by relaxing the restriction for some kinds of corporations — those that do not earn a profit, such as an advocacy organization — it would then have to choose between First Amendment precedents.  “What case,” he asked, rhetorically, “suggests that we should have a hierarchy of cases” that should or should not be overruled.

Justice Alito, although less active, asked questions or made comments that all pointed to his unwillingness to maintain the curbs on corporations.  He told Kagan that the switching of government positions on what forms of corporate expression could be outlawed meant that “I have no idea where the government would draw the line.”

He also told her that “more than half the states” allow corporations to spend their own money in political campaigns at the state level, and wondered whether they had all been “overwhelmed by corruption” of the political process.

When former Solicitor General Seth P. Waxman, representing campaign finance law sponsors in Congress, talked about 100 years of federal curbs on corporations in politics, Alito said that argument “is perplexing,” sounding like a sound-bite on TV, because the Court was now focusing only on the continuing force of two of its precedents “that don’t go back 100 years.”

Justice Scalia’s most repeated argument was that more than 90 percent of the corporations in the nation are either very small, or are actually even owned by a single person, and yet the federal curbs on corporate spending in campaigns would reach every one of those businesses.  That, he said, gives the present curb “vast overbreadth.”

Kennedy was less aggressive in his questioning, but openly voiced concern that government arguments for leaving intact the two precedents against corporate political spending would undercut the Court’s 1976 decision in Buckley v. Valeo, finding constitutional free speech rights in political spending by all sources, corporations included.  And he said those precedents meant that corporations would be “silenced” when they had contributions to make to public policy by speaking out during campaigns.

The core problem with those prior rulings, Kennedy said, was that they “chill expression” based on the speaker.  “There is no place where an ongoing chill is more dangerous than in the election context,” he commented.

Former Solicitor General Theodore B. Olson, arguing for the advocacy group Citizens United (which brought this case to defend its right to distribute a critical documenatary film about Hillary Rodham Clinton during last year’s presidential campaign), encountered heavy questioning from Justices who have favored campaign limits in past rulings: John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer.

Stevens and Ginsburg continually pressed for a narrow ruling, perhaps allowing Citizens United free rein to distribute the “Hillary” movie and relaxing curbs on other non-profit corporations.  Stevens openly touted a brief filed by the National Rifle Association, which proposed — as an alternative to overruling the two precedents — that corportions that get their funding entirely from individual donors be exempted from the spending curbs.  Ginsburg used many of her questions and comments to argue strenuously for treating corporations differently from individuals in political expression.  She remarked: “A corporation, after all, is not endowed by its creator with inalienable rights.”

Justice Breyer commented several times how important it was for the Court to defer to Congress’s judgment about what is necessary to insulate federal politics from wrongful influences.  What, he asked rhetorically, should the Court do about the reality that “people think that their Representatives are being bought”? Wasn’t that a sufficient interest to justify the restrictions, he wondered.  Breyer also questioned whether a ruling all.owing corporate political spending would give businesses more influence in politics than political parties have, because of limits on their campaign financing.

This was Justice Sotomayor’s first argument; the hearing ran for 35 minutes before she asked her first question.  She commented that Citizens United seemed to be giving up on its earlier arguments that the case could be decided on very narrow grounds, without reaching the constitutional questions the Court itself has now raised.

At another point, Sotomayor said state and federal legislatures for 100 years had been “trying to find that balance” of what to allow and forbid in campaign finance, but that a new shield of constitutional protection for corporations might “cut off that future democratic process.”

She added that the Court’s “error to start with” may have been its decision decades ago to treat corporations as “persons” for constitutional purposes.  She wondered if the Court would “be doing more harm than good” with a broad ruling “in a case not involving a for-profit corporation.”  First Amendment expert Abrams responded that the Court would be “doing only good” to revive free-speech principles.  Legislatures, he contended, “could do many other things” to reform campaign finance — such as public funding — without curtailing speech.