Tuesday, September 8, 2009

The Biggest Supreme Court Case You Haven’t Heard About

According to an article in the New York Times last week, the U.S. Supreme Court will soon hear a second round of arguments for a case that may have sweeping implications for campaign politics.

The case is Citizens United v. FEC and it surrounds the 2008 documentary “Hilary: the Movie” - a conservative film that tried to persuade voters not to select Hilary Clinton as the Democratic nominee for President. Such films have been gaining popularity on both sides of the political spectrum since Michael Moore released documentaries like “Bowling for Columbine” and “Fahrenheit 9/11”.

But what few had previously considered is the role such pictures have in campaign finance reform. Like most Hollywood films, these non-neutral documentaries are financed by corporations. But corporations (as well as labor unions) are strictly forbidden from spending money on political campaigns under U.S. law. They must do it through Political Action Committees, which are limited in how much they can put into a race.

And it has split the political spectrum wide open on the issue of “free speech” as defined in Buckley v. Valeo - which found that campaign donations could not be constitutionally forbidden since they constituted a form of speech. The hearing - which is scheduled for tomorrow - has generated over 40 friend-of-the-court briefs from advocates and opponents of both sides of the debate.

As a group, they depict an array of strange bedfellows and uneasy alliances as they debate whether corporations should be free to spend millions of dollars to support the candidates of their choice.

The [ACLU] and its usual allies are on opposite sides, with the civil rights group fighting shoulder to shoulder with the [NRA] to support the corporation that made the film.

Although the well-known law at hand, McCain-Feingold, applies only to broadcast, satellite or cable transmissions, some are arguing this case fits under the current regulations. One government lawyer even made the argument that it gives the FEC the power to regulate political books that were published with corporate cash.

Meanwhile, the New York Times recently published an editorial asserting that a ruling for Citizens United “would usher in an unprecedented age of special-interest politics.”

According to Politico, that could be an overall benefit for Republicans.

The [DNC]’s top lawyer, Bob Bauer, who also personally represents President Obama, argues that opening the door to more corporate spending in elections would discourage what Bauer contends is the rising power of the type of small donors who helped power Obama to victory in last years’ presidential campaign, and who “are now enlisting to volunteer in their political causes, forming a new online corps of freshly empowered average citizens of varying party affiliations and political commitments.”

“A sudden change in the law, to the advantage of corporate wealth amassed in commercial transactions would cause a violent disruption in this process,” Bauer asserts in a brief filed with the court opposing the new spending.

The law preventing corporate funding in elections goes back to the Tillman Act of 1907, and the Supreme Court has generally upheld it as minimally adverse to free speech and “offset by a compelling government interest in preventing corporations, in particular, from having an inordinate influence in the political process.”

Such cases upholding the Tillman Act’s purposes include Austin v. Michigan Chamber of Commerce, and a 2003 case in which Sen. Mitch McConnell - the current Senate Minority Leader - challenged McCain-Feingold in part because of its restrictions on corporate spending.

As the Politico article continues…

Since 2003, however, the court has become more hostile to campaign finance regulations…

…advocates for stricter campaign finance rules were shocked when the justices, who initially heard the Citizens United case in March, asked the parties to return for a rare re-argument of the case – with a much broader focus. Instead of merely arguing whether federal election laws requiring donor disclosure and limiting content and airing dates should have applied to “Hillary: The Movie,” Chief Justice John Roberts asked the parties to argue whether the court should reverse its rulings in the 2003 McConnell case and the 1990 Austin case.

While the Supreme Court has been unraveling campaign finance reforms incrementally over the past few years - with decisions that even limited the McCain-Feingold law - the decision to re-hear arguments for Citizens United v. FEC do appear to indicate a dramatic decision is awaiting.

That decision may change the face of American politics for years - making it even more difficult to separate politicians from special interests.

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