'Hillary' case: the legal stakes

Three Supreme Court justices have already announced their willingness to overturn a pair of key precedents.

On Wednesday, the US Supreme Court is set to hold an 80-minute argument session that will probe one of the thorniest areas of the ongoing debate over the influence of money in politics.

At issue is whether the high court should overturn two key legal precedents justifying restrictions on corporate speech during federal elections.

Specifically, the justices are examining to what extent corporations enjoy a First Amendment free-speech right to engage in political speech by producing broadcast commercials and films in the days and weeks before an election.

The case revolves around a decision by the Federal Election Commission (FEC) to block video-on-demand broadcasts of a conservative group's unflattering examination of Hillary Rodham Clinton. The 90-minute film is called "Hillary: The Movie."

The group, Citizens United, wanted to show it during the 2008 election season.

The FEC ruled that the film was the equivalent of a campaign-attack advertisement that could be regulated under the 2002 Bipartisan Campaign Reform Act.

The group said the action amounted to government censorship of protected political speech.

The case, Citizens United v. Federal Election Commission, was argued and submitted to the court for decision this past March. But in late June, the court asked the parties to submit new briefs addressing broader First Amendment issues, including why the justices shouldn't overturn two related legal precedents established in 1990 and 2003. Both precedents expanded the constitutional justification for strict limits on corporate spending in federal elections.

Campaign-finance restrictions are generally justified as a means to combat quid pro quo corruption or the appearance of such corruption. The concern is that corporations might buy influence and receive special favors if large amounts of corporate money are instrumental in electing or defeating a particular candidate.

In 1990, the high court embraced a different justification for limiting corporate involvement in elections. Instead of focusing on the corrupting influence of corporate dollars on candidates, the court said such limits could be justified under the Constitution to prevent a corrupting influence on the election process itself.

In a case called Austin v. Michigan Chamber of Commerce, the majority justices declared that the government had a compelling interest in preventing corporations from using their massive financial resources to drown out other voices in an election. The Constitution, the court said, permits the government to enforce a level playing field during campaign seasons to prevent wealthy corporate interests from distorting the political landscape.

That 1990 decision and its antidistortion rationale were reaffirmed in 2003, when the high court upheld similar corporate-spending restrictions in the Bipartisan Campaign Reform Act.

Now, the court is reexamining those decisions.

Three justices – Antonin Scalia, Anthony Kennedy, and Clarence Thomas – have already announced their willingness to overturn them. The big question is whether Chief Justice John Roberts and Justice Samuel Alito are willing to join the three to form a five-vote majority.

On Wednesday, all the justices will hear arguments from both sides.

US Solicitor General Elena Kagan and reform advocates are playing down the "level playing field" aspect of the Michigan case and instead are emphasizing the potential corruptive influence of corporate money in elections.

Huge independent spending by corporations holds the potential for corruption, says Tara Malloy of the Campaign Legal Center in Washington. "Total corporate profits in 2005 were $1 trillion," she says. "One could see that if a fraction of that was spent in a congressional race, that will overwhelm the race."

Ms. Malloy adds, "Even if corporate expenditures are independent, the vast treasuries available to corporations means that in a common-sense way, candidates probably will be appreciative and maybe even indebted to the corporations who spent on their behalf."

The suggestion that Citizens United was attempting to gain corrupt influence is misguided, says Theodore Olson, lawyer for the group. "The public can ... rest assured that 'Hillary' represents nothing more than one conservative ideological group's independently expressed views on Senator Clinton's political background and policy positions," he writes in his brief.

"[The high court's 1990] anti-distortion rationale – and its fundamental premise that to protect the marketplace of ideas the government must suppress political speech – is antithetical to the First Amendment," Mr. Olson writes.

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For more about the free-speech issues in this case, click here.

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