All you Supreme Court junkies buckle in: Wednesday is going to be a wild ride in the high court.
The Court will cut its recess a month short on Wednesday to hear a re-argument of a campaign finance case that could fundamentally reshape how elections are conducted. At the heart of the case is the central issue of campaign finance laws: Do corporations have different rights than individuals?
The case, Citizens United v. Federal Election Commission, centers on "Hillary: The Movie," a scathing criticism of Hillary Clinton released during last year’s presidential campaign. Citizens United, the group behind the movie—which most mainstream commentators considered a pure political hit piece—sought to distribute the film on a video on demand service. The FEC intervened, saying it amounted to a long political ad and, therefore, violated campaign finance laws—such as McCain-Feingold—that limit the amount of money corporations can spend in ads advocating either for or against political candidates.
The FEC won and a lower court ruled that the film unlawfully sought to "to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and that viewers should vote against her."
What initially appeared to be a narrow case focusing on one movie now appears to have much broader implications and has court watchers buzzing. The Supreme Court first heard the case in March but opted to rehear arguments—something that is rare. Combine that with the justices cutting their recess a month short to address the case and some are speculating that the justices are preparing a ruling that could fundamentally reshape the role of corporations in elections.
The court’s eventual decision could overturn two previous rulings: A 1990 ruling in Austin v. Michigan Chamber of Commerce that upheld restrictions on corporate spending in elections and 2003’s McConnell v. FEC, the ruling that upheld McCain-Feingold.
One big reason for the speculation is the current make up of the court. In the 2003 5-to-4 ruling that upheld McCain-Feingold, three current justices signed the minority opinion that would have struck down the corporate restrictions. Among them was Justice Anthony Kennedy, who is considered the swing vote in the current court.
Citizens United also appears to be ready to argue the case on broad terms. Theodore Olson, President George W. Bush's solicitor general who is arguing the case on the group's behalf, penned an op-ed in the Wall Street Journal on Tuesday that frames the issue as a question of corporate rights versus individual rights.
"Is outlawing political speech based on the identity of the speaker compatible with the First Amendment?" he asks. "Tomorrow, the Supreme Court will hear arguments to determine the answer to this question."
Olson goes on to argue that Congress acted without proof that corporate money unfairly influences elections. "Put simply, the government's theory is that because wealthy corporations and unions might speak too much during elections, all of them must be silenced," he writes.
Here are few things to watch for in Wednesday's arguments:
How do books figure into this? In the hearing in March, the lawyer representing the government argued—perhaps regretfully—that the precedent would also allow the government to ban corporations from distributing books if they called for the election or defeat of a political candidate. As New York Times Supreme Court reporter Adam Liptak notes, that position appeared "to astound" several justices and there were gasps in the courtroom. "That's pretty incredible," Justice Samuel Alito said in response.
Odd bedfellows. The case has divided civil liberties and civil rights groups. While most liberal groups continue to oppose Citizens United and the role of corporate money in elections, others—most notably the American Civil Liberties Union—are supporting the conservative advocacy group. Their argument is that no restrictions should be placed on the First Amendment right to free speech. That puts the ACLU on the same side as the National Rifle Association. Also siding with Citizens United are Floyd Abrams, the most prominent contemporary First Amendment lawyer, and the Reporters Committee for Freedom of the Press, which has filed two amicus briefs on the case.
On the other hand, Olson, who is arguing against campaign finance laws, previously argued in their favor as Bush's solicitor general.
New legal stars take the big stage. Wednesday's arguments will be Justice Sonia Sotomayor's debut on the court. Many will watch for indications of what type of questioner she will be. The arguments will also be Solicitor General Elena Kagan’s first ever in front of the Supreme Court. Kagan, the former Harvard Law dean, was considered to be on President Obama's shortlist when Justice David Souter retired and could be his next nominee if another justice steps down.
Jeremy P. Jacobs is a staff writer at Politics. He can be reached at email@example.com