June 29, 2009
Kenneth P. Vogel
In a sign that the Supreme Court is seriously considering overturning one of the underpinnings of modern campaign finance rules, Chief Justice John Roberts on Monday announced that justices would rehear a case challenging restrictions on corporate-funded campaign ads.
The result of the argument, which is scheduled for September 9, could reshape the way American political campaigns are waged on the precipice of the 2010 midterm and the 2012 presidential elections.
“That would be a sea change in federal and state campaign finance,” said former Federal Election Commission Chairman Michael Toner. “The stakes will be enormous. And this will have a direct bearing on the 2010 midterm elections and the 2012 presidential elections.”
Monday’s developments also increase the impetus for the White House and congressional Democrats, who generally favor restrictions on corporate cash, to move quickly to confirm Supreme Court nominee Sonia Sotomayor, who has a long history of supporting stricter money-in-politics rules.
The case in question,Citizens United v. FEC, deals with whether federal election laws should have applied to a 90-minute film released during last year’s presidential election lambasting then-New York Sen. Hillary Clinton, who was seeking the Democratic presidential nomination.
Lower courts ruled that the documentary expressly opposed Clinton – now secretary of state – meaning that Citizens United, the conservative nonprofit that funded the film, should comply with campaign finance rules requiring financial disclosure.
But in his call for re-argument, Roberts indicated that the court would take a broader and potentially farther-reaching approaching to the case, asking the lawyers involved to argue whether justices should overturn a key section of the 2002 McCain-Feingold campaign finance act that tightly regulates corporate-funded expenditures.
If the court reverses prior decisions upholding the legal foundations of the provision, corporations and unions would be able to spend millions of dollars on ads attacking or boosting candidates right up until Election Day without many restrictions. Under current law, campaign ads must be about issues and aren’t supposed to expressly support or oppose candidates.
Monday’s announcement set off alarms for groups that have worked to limit the influence of money in politics and excitement among those who have opposed campaign finance restrictions as limits on First Amendment rights.
Scott Nelson, an attorney with Public Citizen, a nonprofit that filed a brief opposing Citizens United, warned that overturning the McCain-Feingold provision “would transform our elections into free-for-alls with massive corporate and union spending flooding the airwaves and officeholders beholden to the deep pockets that promoted their candidacies.”
But Stephen Hoersting, an official with the Center for Competitive Politics, a nonprofit that supported Citizens United, said that result would “strengthen First Amendment rights and allow Americans to more fully participate in our political system.”
In a conference call, Sen. Chuck Schumer (D-N.Y.), who sits on the Senate Judiciary Committee that is considering Sotomayor’s nomination, said the rehearing “is another reason that we should confirm Judge Sotomayor quickly.”
Sotomayor would replace Justice David Souter, who has reliably sided with supporters of stricter rules, but who plans to retire this month.
Without Souter or Sotomayor on the nine-member panel, McCain-Feingold skeptics – including Justices Roberts, Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas – would have a wide majority at re-argument.