Supreme Court to Revisit Election Financing in Potential Landmark Case - washingtonpost.com

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Film About Clinton Opens a Review of Corporate Spending

By Robert Barnes
Washington Post Staff Writer
Saturday, September 5, 2009

More than 100 years of restrictions on corporate support of political candidates will be at stake next week when the Supreme Court considers whether a quirky case about a film denouncing Hillary Rodham Clinton should lead to a rewrite of the way federal elections are financed.

In an unusual hearing in the midst of their summer recess, the justices will decide whether to move beyond the particulars of "Hillary: The Movie" to more profound questions about the First Amendment's guarantee of free speech and how that squares with political spending.

The justices will consider casting aside previous rulings that uphold laws restricting corporate support of political candidates.

The court ruled in 1990 that corporations, because of their "immense aggregations of wealth," possessed a unique ability to drown out the voices of individuals in the nation's political conversation. That precedent was reinforced in 2003 when the court upheld the federal campaign finance law that limits the electoral influence of corporations, unions and special interest groups.

Conservative justices have chafed at the restrictions, especially in the federal legislation commonly known as the McCain-Feingold Act. And they have been joined by like-minded colleagues in Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

That the court would overturn a decision made as recently as 2003 has advocates of campaign finance reform erupting about "judicial activism" and speaking in apocalyptic terms.

"It would unleash corporations to use their massive wealth to overwhelm the federal system, with disastrous consequences for the country," said Fred Wertheimer, a longtime campaign finance reformer who now leads Democracy 21, a watchdog group.

He imagines corporations demanding fealty from lawmakers on health-care reform or auto industry bailouts with the promise of millions of dollars for their campaigns -- or the threat of the same amount used to finance a challenger.

Others see the potential for partisan advantage.

"If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama's $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama," Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles, wrote for the online magazine Slate.

But Bradley A. Smith, a former chairman of the Federal Election Commission who has urged the court to overturn the precedents, said that the "sky-is-falling rhetoric of the other side is simply not true."

Smith, a Republican appointee to the commission who is now a law professor at Capital University in Ohio, said there is no evidence that corporations would spend millions of dollars targeting specific lawmakers.

While nearly half the states ban or greatly restrict corporate spending on behalf of candidates -- and could have their laws rendered unconstitutional by the court's decision -- the rest do not, Smith said. States such as California, Texas and Virginia allow corporate spending, without the "predicted catastrophes" advanced by advocates of campaign finance reform, he said.

That the court is considering such a broad challenge to corporate spending is a surprise. The case at hand arises from a conservative group's production of a scathing look at Clinton produced during her run for the 2008 Democratic presidential nomination.

A lower court said the film ran afoul of a McCain-Feingold provision that forbids corporations, unions and special interest groups from using money from their general treasuries for "any broadcast, cable or satellite communications" that refer to a candidate for federal office during election season.

In the past, that has meant 30-second to one-minute campaign ads. But the lower court said the same rule applied to Citizens United's 90-minute film about Clinton, which it proposed to broadcast on demand on cable channels.

But during oral arguments in March, conservative justices were more interested in the larger questions of how far government could go to corral corporate spending. Even though the law is specifically about broadcasts, justices asked the government's lawyer whether the ban could include books that endorsed a candidate.

When the deputy solicitor general said that theoretically it could, the justices seemed rattled.

"It's a 500-page book, and at the end it says, 'And so vote for X.' The government could ban that?" Roberts asked.

Instead of deciding the case at the end of the term in June, the court set a special hearing for Sept. 9 to decide whether to overturn its two precedents.

One was the court's 5 to 4 decision in 2003 declaring McCain-Feingold constitutional.

That decision cited the court's 1990 ruling in Austin v. Michigan Chamber of Commerce, in which it upheld a state law banning corporations from using their profits for ads supporting or opposing candidates. Congress had done the same for corporations and unions in 1947 regarding federal elections, and a ban on direct corporate contributions to candidates dates to 1907 and President Theodore Roosevelt.

The issue has united conservatives and split liberals, who generally support campaign finance restrictions but are torn about the restrictions on political speech.

Noted First Amendment lawyer Floyd Abrams is representing Senate Minority Leader Mitch McConnell (R-Ky.), who originally urged the court to strike down McCain-Feingold and has been allowed to intervene in next week's hearing. An association of reporters is also worried that the law's exemption for the news media is either not broad enough to support new forms of expression, or that that law could be changed in the future.

Supporters of McCain-Feingold criticized the justices' move as an abandonment of the court's policy of sticking by its precedents even when its membership has changed. Justice Sandra Day O'Connor, who provided the necessary vote to find McCain-Feingold constitutional, was replaced by Alito, who is skeptical.

"The court is not supposed to turn on a dime because of a change in justices," said Trevor Potter, a former Federal Election Commission member who advised McCain and supports the legislation.

But Steve Simpson, senior attorney for the Institute for Justice, said justices may have become frustrated with trying to balance McCain-Feingold's restrictions on campaign finance with the constitutional guarantee of free speech. "A number of principles are sort of banging into each other here," he said.

There is not much mystery about where the justices stand. Anthony M. Kennedy, Antonin Scalia and Clarence Thomas have said Austin should be overruled, and have been consistent critics of the campaign finance reform act.

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer have approved of the restrictions, as did David H. Souter, who recently retired.

This will be the first hearing for Souter's replacement, Justice Sonia Sotomayor. But judging from the decisions and speeches she has made about the dangers of campaign contributions, it would be a surprise if she voted differently from Souter.

Roberts and Alito are key. Both have supported every challenge to McCain-Feingold since joining the court, loosening some of the law's restrictions, but so far they have been reluctant to declare prohibitions on corporate spending unconstitutional.

The oral argument is also the first for Solicitor General Elena Kagan. She has warned the court that it should not undermine such a "long-standing and central principle of federal and state campaign finance law" without a more detailed record of what it would mean.

Her counterpart, coincidentally, is a former solicitor general, Theodore B. Olson, whose duty it was in 2003 to defend McCain-Feingold. Now, his brief for Citizens United reinforces the threats of "criminalization" of speech that worried justices at the oral argument:

"When the government of the United States of America claims the authority to ban books because of their political speech, something has gone terribly wrong and it is as sure a sign as any that a return to first principles is in order."

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Sotomayor Faces Big Workload of Complex Cases

By ADAM LIPTAK

Now comes the hard part.

With the Senate’s approval of Judge Sonia Sotomayor’s nomination to the Supreme Court on Thursday, the new justice will soon take on one of the most demanding jobs in the land.

Just over a month from now, Justice Sotomayor will hear her first case, one that may transform how elections are financed, at a special summer session of the court. A few weeks later, she will join her eight new colleagues to decide which of the hundreds of appeals that have piled up over the summer the court should hear.

The volume and difficulty of the work, and the task of fitting into a storied institution populated by strong and idiosyncratic personalities, has unnerved even judges with distinguished records on lower courts, fancy credentials and ample self-confidence.

“I was frightened to death for the first three years,” Justice Stephen G. Breyer, who joined the court in 1994, said in a 2006 interview. Justice David H. Souter once described coming to the court in 1990 as like “walking through a tidal wave.”

The new justice’s presence will unsettle and reshuffle the court, sometimes literally. When she takes the seat reserved for the junior justice — the one on the spectators’ far right side — four other justices will move to new places on the bench. When there is a knock at the door during the justices’ private conferences, it will be Justice Sotomayor’s job to answer it.

In addition to the blockbuster election-law case, the new term is frontloaded with important First Amendment, business, criminal and patent cases. Justice Sotomayor’s early votes and opinions, along with alliances she forges, will provide answers to at least some of the questions she avoided in confirmation hearings.

But Supreme Court specialists said they do not expect her to take a fundamentally different approach from Justice Souter, whom she is succeeding, in most kinds of cases. They also cautioned that a justice’s first few years are often a poor indicator of a long-term philosophy.

“Few justices write broadly or stake out new terrain in their first terms,” said Richard H. Pildes, a law professor at New York University who served as a law clerk to Justice Thurgood Marshall.

“The Supreme Court is an intimate group of equals who will live together for years,” Professor Pildes added. “Most newcomers tread gently as they come to terms with the dynamics of the group and a daunting array of new issues, including questions lower court judges never face, such as how bound to be by prior Supreme Court decisions. The cases are harder, the ramifications of decisions far more consequential.”

For Justice Sotomayor, the new job will start with hearing the election-law case Citizens United v. Federal Election Commission. It concerns whether the government may limit the showing of a negative documentary about Hillary Rodham Clinton under the campaign finance laws, and it attracted only limited attention when it was first argued in March.

In an unusual move in June, though, the court set the case down for re-argument on Sept. 9, asking the parties to address the question of whether it should overrule a foundational decision about the regulation of corporate speech and part of a decision upholding the McCain-Feingold campaign finance law.

Erwin Chemerinsky, the dean of the law school at the University of California, Irvine, said Citizens United is “one of the most important First Amendment cases in years.”

“It has,” Mr. Chemerinsky added, “the potential for dramatically changing all federal, state and local elections if the court holds that corporations have a First Amendment right to contribute money to candidates.”

The docket is also studded with business cases, and the decisions in them will provide hints about how the court will treat disputes arising from economic legislation pushed through Congress by the Obama administration.

“The Supreme Court,” said Joseph A. Grundfest, a law professor at Stanford, “will likely issue important decisions defining the permissible level of punitive damages, the validity of business method patents, whether and when parallel conduct among competitors violates the antitrust laws, and statutes of limitations in securities fraud action. But who the heck knows how Justice Sotomayor will vote in any of these cases?”

A former prosecutor, district and appellate court judge, she has a more fully developed record on criminal issues. Her views are in some ways more conservative than those of Justice Souter, meaning that this is an area where her vote may make a difference.

“I would have expected her to have voted against subjecting scientific experts to cross-examination,” said Craig M. Bradley, a law professor at Indiana University, referring to a 5-to-4 decision from the court in June. The decision, with Justice Souter in the majority, ruled that crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination.

The court has agreed to hear a follow-up case, and the new justice will have to consider whether to narrow the scope of the decision from June, Melendez-Diaz v. Massachusetts.

A pair of cases concerning whether the Constitution allows juvenile offenders to be sentenced to life without parole for crimes in which no one was killed will also illuminate Justice Sotomayor’s views on harsh punishments. They may also answer a question not fully resolved at her confirmation hearings, that of whether she will look to the decision of foreign courts in considering the issue, as the court did in barring the execution of juvenile offenders in 2005.

The lower courts in the two new cases, both from Florida, had no difficulty ruling against the inmates who brought them. The courts said they were bound by Supreme Court precedent. But the Supreme Court itself is free to alter or reinterpret its precedent.

Justice William J. Brennan Jr., who served for more than 30 years and who wielded his charm and intellect to forge sometimes unlikely liberal majorities, said there was no way to get ready for such a task.

“I say categorically that no prior experience, including prior judicial experience, prepares one for the work of the Supreme Court,” Justice Brennan wrote in 1973. “The initial confrontation on the United States Supreme Court with the astounding differences in function and character of role, and the necessity for learning entirely new criteria for decisions, can be a traumatic experience for the neophyte.”

Demolition Specialists: The Supreme Court's 2008/2009 Term

By Bill Yeomans, AFJ Legal Director

In Ricci v. DeStefano, the five conservatives on the Supreme Court struck a blow against this nation's most effective weapon for eliminating discrimination from our workplaces: the disparate impact standard of Title VII of the Civil Rights Act of 1964. Over the strong dissent of four justices, the conservative majority held that New Haven, CT engaged in intentional discrimination against white firefighters when it rejected the results of tests for firefighter promotions because they disproportionately excluded African American and Hispanic candidates.

In 1971, in Griggs v. Duke Power Co., a unanimous Supreme Court held that Title VII prohibited employment practices that had a disparate impact on minorities and were not necessary for the job. In Chief Justice Burger's words, Title VII prohibited 'employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups...' Some tests were intentional devices to exclude minorities and women, while others were the result of sloppy employment practices. After Griggs, it was no longer necessary to prove that employers intended to discriminate. The focus was on whether hiring and promotion criteria tested for skills that were necessary to perform the job; no calculus tests for sanitation workers or strength tests for accountants. Griggs launched a generation of progress that uprooted entrenched discrimination and desegregated many of our nation's major police and fire departments.

Private plaintiffs, public interest litigators and the Justice Department's Civil Rights Division broke down barriers to minority employment by pursuing litigation and negotiating consent decrees against dozens of states and localities, many of which hired on the basis of legacy, subjective criteria, or flawed employment tests that excluded qualified minority applicants. The result was more professional police and fire departments whose effectiveness increased because they looked more like the communities they served. Chicago, which operated segregated fire houses in 1974, increased African American representation in its fire department from 4% to 20% by 1995. In Los Angeles, the fire department went from 96% white in 1974 to more than 50% nonwhite by 2002, while in Boston minority representation in the firefighting ranks increased from 1% in 1974 to almost 40% by 2000.

Don't let these numbers fool you, however. As New Haven's own situation attests, discrimination and lack of minority representation on fire and police squads is still a very real problem. Though New Haven's population is more than 50% nonwhite, minorities only have an 18% representation in leadership roles within the fire department. Only one of 21 fire captains is African American. This disparity is what New Haven was trying to address.

Opponents of civil rights enforcement, however, are not concerned with these inequalities and fought from the start to eliminate disparate impact enforcement. They contended falsely that it led to quotas. They won a Pyrrhic victory when the Supreme Court, including Ricci author Justice Anthony Kennedy, severely curtailed the effectiveness of disparate impact lawsuits in Wards Cove Packing Co. v. Atonio. The groundwork for this assault on Title VII was laid in Ronald Reagan's Department of Justice by young anti-civil rights activists, including John Roberts and Samuel Alito. Fortunately, Congress responded by passing the Civil Rights Act of 1991, which incorporated the disparate impact standard into the text of Title VII.

The Court's ruling in Ricci is the latest chapter in the efforts of right wing ideologues to subvert the disparate impact standard. The Court created a new standard, stating that the New Haven needed a "substantial basis in evidence" before it could reject the results of a test that had the overwhelming effect of excluding African Americans and Hispanics from promotion as firefighters. In effect, the Court said that the City would have to prove the case against itself and establish that it had committed a disparate impact violation before it could withdraw the test and start over by searching for a less discriminatory alternative. While the obligations of Title VII remain in full effect, the Court's decision is bound to prove to be a disincentive to employers who want to comply voluntarily with Title VII, but don't want to prove that they have violated Title VII.

In a striking departure from principles that govern appellate review, the Court reversed the case outright, rather than following its usual practice of sending the case back to the lower courts to apply the facts to the new standard in the first instance. The Court's eagerness to impose its judgment was unseemly.

It now falls to the executive branch—through the Department of Justice, Equal Employment Opportunity Commission and Department of Labor—to craft new guidance that will minimize the damage inflicted by the Court's ruling and ensure that Title VII's protections remain robust. Should those efforts come up short, Congress may have to consider whether it must step forward yet again to give force to Chief Justice Burger's simple statement in Griggs that, "[t]he objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."

For more analysis of this term and the impact Sonia Sotomayor could have upon the Supreme Court, please take a look at our in-depth end of term review.