Rarely does anything unite the ACLU, the NRA, pro-lifers, labor unions, and Senate Republican Leader Mitch McConnell, but all are on the same side of a potentially watershed case just argued before the Supreme Court. On the other side stand the Democratic National Committee, Republican Sen. John McCain, and the Federal Elections Commission.
What hangs in the balance in Citizens United v. FEC is 50 years of campaign finance regulations. At issue specifically in the case is a film by Citizens United called Hillary: The Movie, an obviously partisan documentary that the FEC banned from television and on-demand video because a corporation funded it, based on the McCain-Feingold laws that prohibit corporate expenditures on political advocacy in a window of time near elections.
The pro-regulation camp says that if laws like McCain-Feingold are overturned, political offices could essentially be bought. The anti-regulation camp argues that the current laws smother First Amendment rights and put too heavy a burden on corporations when wealthy individuals can spend as much as they please.
"You must always second-guess Congress when the First Amendment is in question," said Ted Olson, lawyer for Citizens United. The threat of prosecution for political advocacy, he said, "chills speech." Justice Anthony Kennedy seemed to agree: "There's no case where an ongoing chill is more dangerous than in the elections context."
But Justice Ruth Bader Ginsburg countered: "A corporation is not endowed by its Creator with inalienable rights."
The court already heard the case back in June, but instead of issuing an opinion, called for another hearing in September, before its 2009 season officially begins, indicating that the justices may be poised to issue a landmark ruling. Crowds gathered in the rain outside the court, and inside every seat was filled for the 90-minute hearing with prominent senators like McConnell and Chris Dodd watching.
Citizens United will win this case; that's almost a foregone conclusion. "If you're suggesting if the government has a preference on how to lose if it loses . . ." began Solicitor General Elena Kagan, arguing on behalf of the FEC. The courtroom filled with laughter. But any predictions on how the court will write its opinion in the next few weeks are shots in the dark.
The justices could rule narrowly, making specific accommodations for Citizens United, or they could address the larger principle of regulation of corporations. Chief Justice John Roberts is averse to the court making new policy and has steered justices to more narrow, cautious rulings this year, but at the hearing he seemed unimpressed with the government's arguments for the constitutionality of the law.
"Isn't it extraordinarily paternalistic?" Roberts said, when Kagan mentioned the campaign laws protecting the interests of corporate shareholders. "'We the government have to protect you naïve shareholders.'"
Justices Kennedy, Antonin Scalia, and Clarence Thomas have made clear that they favor a broader ruling on the laws, while justices Sonia Sotomayor, Ginsburg, Stephen Breyer, and Paul Stevens favor a narrower ruling. Justices Sam Alito and Roberts are the unknown factors. None of the justices seemed pleased with the idea that the laws apply to all corporations alike-including small businesses, unions, and nonprofits. Alito said he has "no idea where the government would draw the line."
Bob Bauer, counsel for the DNC, supports the FEC in the case and commented that he doesn't expect McCain-Feingold or other regulations to be overturned, saying, "The court would have to go out of its way to decide so momentous a change in campaign finance law."
But Roberts and Alito's skepticism about the current laws, coupled with Kennedy, Scalia, and Thomas' support indicates that the court may indeed make a momentous change.