Supreme Court: Free Speech vs. Campaign Donations

Washington, Sept. 9, 2009 — -- The Supreme Court, in a rare September session, met on Wednesday to hear new arguments in a case that could be key to the way elections are run and bankrolled in the future.

At issue was "Hillary: The Movie" a 2008 film critical of then-presidential-candidate Hillary Rodham Clinton. It was made by a nonprofit conservative group and targeted for distribution during the last presidential primary through a "video on demand" service.

But the Federal Election Commission stepped in and banned its distribution, ruling that the movie was the equivalent of a campaign ad attacking a candidate. Because the film was made partly with corporate contributions, the commission ruled it was "electioneering communications" -- subject to restrictions under campaign finance law.

In court today, a lawyer for the nonprofit group, Citizens United, urged the justices to revisit court precedent and allow corporate funds as they had been used for "Hillary: The Movie."

"Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment's guarantee of free speech," said Theodore Olson, arguing for Citizens United. "Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations."

Corporations vs. Individuals

Liberal Justice Ruth Bader Ginsburg asked the first question of the 90 minute argument. She suggested there is a distinction between rights of individuals and those of corporations.

"A corporation, after all, is not endowed by its creator with inalienable rights" she said.

Justice Antonin Scalia was critical of recent attempts by Congress to restrict corporate spending. He said, "I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so."

Free Speech? Or a Campaign Donation?

But Solicitor General Elena Kagan, making her debut before the court, shot back.

"I think, Justice Scalia, it's wrong. In fact, corporate and union money go overwhelmingly to incumbents." Referring to the McCain-Feingold law restricting corporate money in campaigns, she said, "This may be the single most self-denying thing that Congress has ever done."

Kagan argued that the court should not overturn precedent. "For over 100 years," she said, "Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this court has never questioned that judgment."

But some Justices wondered whether the FEC could ban the distribution of a book under similar circumstances.

Kagan dismissed such concerns saying, "The FEC has never applied this statute to a book."

Chief Justice Roberts was quick to respond: "We don't put our First Amendment rights in the hands of FEC bureaucrats" he said, "and if you say that you are not going to apply it to a book, what about a pamphlet?"

Outside of court, Senators John McCain and Russell Feingold, sponsors of the 2002 law that bears their name, said they were frustrated that the issue was even before the justices again.

"Does anyone believe" McCain asked, "that the rights of average citizens to be heard in Washington would not be overridden by massive unlimited campaign contributions from corporations and unions?"

'The Universe is the Limit'

Public interest activists say they are afraid that the case could forever change the way money flows into the election system.

"You would be opening the door to corporations and trade associations making corporate campaign expenditures," says Fred Wertheimer of the public interest group Democracy 21. Wertheimer says that if the court decides to overturn campaign finance laws, corporations would have new and powerful influence in areas sure to be important in the next election, such as health care and global warming.

"It's not that the sky's the limit," says Wertheimer, "the universe is the limit."