Magazine article Politics Magazine

The Case That Could Change the Race

Magazine article Politics Magazine

The Case That Could Change the Race

Article excerpt

The Supreme Courts first hearing of the October session had all the makings of great drama. The justices ended their recess a month early--something that is rare--for re-arguments in a case they first heard in March--something that is even more uncommon. It was newly confirmed Justice Sonia Sotomayor's first appearance on the bench, Solicitor General Elena Kagan's first time before the court and featured arguments from two former solicitors general and the country's preeminent First Amendment attorney. The

courtroom was packed with Congressional leaders like Sens. Chris Dodd (D-Conn.), John McCain (R-Ariz.), Russell Feingold (D-Wisc.) and Mitch McConnell (R-Ky.), and the networks had reporters doing live stand ups in front of the court building.

If all of that wasn't enough, hanging in the balance was a case that has the potential to fundamentally reshape the way campaigns are waged--and in time for the 2010 elections. By the end of the Sept. 9 arguments, most believed the current limits on corporations' and unions' political expenditures would be lifted, allowing those big money groups to air significantly more television advertisements in the run up to Election Day.

Asked about the potential impact of the case, Jason Torchinsky, a campaign finance lawyer at Holtzman Vogel, tells Politics bluntly: "It could be massive."

Last year, Citizens United, a nonprofit, conservative advocacy group that has taken corporate contributions, produced "Hillary: The Movie," a scathing documentary that attacked Hillary Clinton's character and career--a film most mainstream reviewers criticized. Citizens United sought to broadcast the film on a video-on-demand service during the contentious Democratic primary. The Federal Election Commission blocked the move, saying the film amounted to a lengthy political ad advocating for the defeat of a candidate and, therefore, could not be aired by a 501(c)(4) group like Citizens United.

Citizens United challenged the FEC's intervention in court. What started as a narrow case on whether this type of documentary from this type of group should be restricted from airing on this type of service quickly broadened during the case's original Supreme Court arguments in March. The issue, said former solicitor general and Citizens United attorney Ted Olson, was whether it was constitutional to limit the speech of corporations, unions and trade associations under the Bipartisan Campaign Reform Act of 2002, better known as McCain-Feingold.

"Robust debate about candidates for elected office is the most fundamental value protected by the First Amendment's guarantee of free speech," Olson said at the very beginning of the re-argument. "Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations."

Although his side originally argued, at least in part, for a narrow ruling, David Bossie, Citizens United's president, tells Politics that his group always believed the case could be more far reaching. At issue, Bossie believed, was whether corporations and unions deserve the same free speech rights as individuals.

"We always felt that there was a bigger case here and that this was a vehicle to right what we considered a great wrong: McCain-Feingold," Bossie says. "We wanted to take as broad a view of this as possible. We thought it was important on multiple levels, not just our firm. We thought it transcended all of campaign finance."

In re-arguments, Citizens United said that the court should overturn two of its precedents. In 2003, the court ruled against a challenge to McCain-Feingold and in 1990 it ruled in Austin v. Michigan Chamber of Commerce that corporate expenditures have "distorting and corrosive effects" on elections. Olson said that if the government is going to criminalize speech in an election, as he claimed McCain-Feingold does, it has to prove a "compelling interest" that justifies the statute. …

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