Citizens United v. FEC, the anti-Hillary ad case.

The law, lawyers, and the court.
June 29 2009 3:02 PM

The Supreme Court Gets Ready To Turn on the Corporate Fundraising Spigot

The case about the anti-Hillary ad got pushed back till September—and got bigger.

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.

In a Supreme Court term that has had its share of surprises, the court saved one of the biggest for last. Rather than publish an opinion at the end of the term as expected in an obscure campaign finance case, Citizens United v. FEC, the court issued a rare order for reargument of the case in September (before the usual start of the term). At that point, the court will consider whether to overrule its two previous decisions that in 1990 and 2003 upheld limits on corporate spending in federal elections.

Given the dynamics of the court, there is a great chance the justices will use the opportunity to overrule limits on how much money corporations can spend supporting candidates—whether or not Judge Sonia Sotomayor is confirmed in time to hear the case in September. In the Voting Rights Act case the court considered last week, the court ducked the constitutional question in favor of narrow statutory interpretation. In contrast, in Citizens United, the court is likely to address the constitutional questions head-on, and the outcome likely will not be good for supporters of reasonable campaign-finance regulation.

First, a bit of background: Citizens United produced an anti-Hillary Clinton documentary. The group wanted to air the documentary during the 2008 presidential primary season through a cable television "video on demand" service and to advertise for it on television. In exchange for a $1.2 million fee, a cable television operator consortium would have made the documentary available to cable subscribers to download free "on demand," as part of an "Election '08" series. Citizens United is an ideological group (like the NRA or Planned Parenthood), but it takes for-profit corporate funding. The McCain-Feingold campaign-finance law passed in 2002 bars certain corporate-funded television broadcasts, such as this documentary, in the period before an election. And the law requires disclosure by the funders of election-related broadcast advertising, such as these ads. Citizens United argued against the corporate-spending ban. (It also attacked the disclosure provisions, but they're probably not really in trouble.)   

Citizens United made a series of alternate arguments as well, from narrow statutory ones to the broad argument that the court should overrule its 1990 case Austin v. Michigan Chamber of Commerce, which upheld limits on corporate spending in candidate elections. Before argument, I expected the court to decide this case narrowly, by reading McCain-Feingold's statutory rules barring corporate-funded television broadcasts as not applying to video-on-demand broadcasts. That would be in line with the Roberts court: The chief justice has tended to prefer a chipping away at existing precedent rather than dramatic decisions to move the law in his direction. But, as Dahlia Lithwick explained, at oral argument the government's lawyer got into some trouble in suggesting that the government would have the constitutional power to ban corporate-published books just before the election. That made it seem like the court could well be poised to overrule Austin.

Though three Justices (Kennedy, Scalia, and Thomas) have voted repeatedly for Austin to be overruled, Chief Justice Roberts and Justice Alito thus far have moved more cautiously. In each of the campaign-finance cases decided by the Roberts court, these justices have sided with those challenging the law, but in an incremental way. If Roberts or Alito were ready to go the narrow route again in Citizens United, however, there would have been no reason to set the case for reargument explicitly asking the parties to brief the constitutional question, and certainly no reason to rush the case to September so it can be decided before the 2010 election season goes into full swing.

And there's a tantalizing hint of where the court will go in another obscure campaign-finance case decided last year, FEC v. Davis. That case involved a different provision of McCain-Feingold, one involving raising contribution limits for candidates facing wealthy opponents. Justice Alito used the case to attack the underlying reasoning of Austin, which upheld the spending limits on grounds that corporate wealth "distorts" the political process and allows spending by corporations "disproportionate" to the views of those in society. In Davis, Justice Alito, for the five conservatives on the court, attacked this equality rationale and said it is "dangerous business" for Congress to try to influence voter choices through "leveling" electoral opportunities. He pointedly cited with approval Justice Kennedy's Austin dissent.

If Roberts and Justice Alito were ready to overrule Austin, why not do it now? I can think of two possible reasons. They may not have wanted to take the plunge on Justice Souter's last day on the court. He has been an ardent defender of these laws. Perhaps more to the point, Justice Alito, in two campaign-finance cases, has said that he would not consider revisiting old campaign-finance precedent until the issue was squarely before the court and briefed. In other words, Alito wants a full airing of the issues before taking such a momentous step.

Now he will get that. And then what? If after reargument in September, corporate limits fall—and limits on the money labor unions can spend on campaigns, with them—we may well look back on the 2008 election as a quaint time when the amounts spent on elections were relatively modest. Expect the floodgates to open, and the money to flow freely, as early as next year.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and author of The Voting Wars.