Is the Supreme Court poised to overhaul the nation’s campaign finance laws? That’s the question as the court holds a special session today to rehear a case that could potentially change laws that restrict spending by corporations and unions on campaigns. The case centers on Hillary: The Movie, an unflattering 90-minute film about Hillary Clinton that the conservative group Citizens United produced during the 2008 campaign. Back then, the Federal Election Commission ruled the film was the equivalent of an attack ad and therefore came under the regulation of a 2002 campaign finance law that restricts spending by outside groups trying to affect the outcome of a campaign. Citizens United promptly sued, claiming the FEC was trying to suppress free speech. While the Supreme Court will weigh whether the FEC’s actions in regard to the Hillary film were correct, the focus of the debate has shifted to a larger question: should corporations and unions be treated differently from individuals when it comes to campaign spending? Whatever the court decides could affect decades of campaign finance law and potentially open a floodgate of money on the eve of a potentially pivotal election year.
Since 1907, corporations have been banned from making direct political contributions to individual candidates. Forty years later, laws were passed banning corporations and unions from using their general treasury funds to influence campaigns. Even more restrictions were posted after Watergate. But as with any law, there were loopholes. Corporations got around the limits by making so-called soft-money contributions to the national political parties, which in turn spent that money to influence individual races. In 2002, the McCain-Feingold bill banned those contributions, as well as unregulated spending on so-called issue ads─on which an outside interest group could spend an unlimited amount of money trying to affect the outcome of a campaign. Congress approved the law, President Bush signed it, and the Supreme Court upheld it─despite criticism from a variety of outside groups ranging from the ACLU to the National Rifle Association that it restricted free speech.
The case is so pivotal that the Supreme Court is returning to work three weeks earlier than scheduled to consider it, and, in an unusual move, it is releasing same-day audio of the debate to the public. Wednesday’s proceedings will mark the debut of Justice Sonia Sotomayor, who was sworn in this summer, but it’s the conservative makeup of the court that has given many pro-reform advocates pause. Since the court’s ruling that upheld the 2002 campaign finance law, the court has added Chief Justice John Roberts and Samuel Alito, who are believed to be sympathetic to those pushing to overturn the existing law. Not that reform advocates have helped themselves. In March, a government lawyer defending precedent that current rules are murky enough that Congress or the FEC could block publication of a book that endorsed a specific candidate─prompting many justices to openly gasp. “The government could ban that?” Roberts said. “That’s pretty incredible,” Alito added.
There’s not much mystery where others on the court stand: Clarence Thomas, Anthony Kennedy, and Antonin Scalia have been critical of the 2002 campaign finance reform act, while John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer have been supportive of the law. But are the court’s conservatives willing to dramatically change campaign finance law? Roberts is the justice to watch in this case, as he could be a potential swing vote. Back in his Senate confirmation hearings in 2005, Roberts spoke warily about reversing legal precedent, suggesting that undoing years of law was not necessarily good for the court. No doubt his feelings on that issue will weigh heavily as the court considers a change to decades of campaign finance law.