SCOTUS Critical Of McCain-Feingold

The SCOTUS today appeared poised to strike down at least a portion of the Bipartisan Campaign Reform Act of '02, after a majority of justices fiercely questioned Solicitor Gen. Elena Kagan and an atty for the legislation's sponsors, including Sens. John McCain (R-AZ) and Russ Feingold (D-WI).

The case -- Citizens United v. FEC -- was first heard by the court on 3/24, but, in an unusual move, the court held over the case and ordered a re-hearing before the start of its Oct. term. Citizens United, a nonprofit advocacy org, produced a 90-min. film titled "Hillary: The Movie" meant for a video-on-demand service. The movie took an unflattering view then-Sen. Hillary Clinton (D-NY) in advance of her WH '08 bid. But the FEC ruled that the film fell under the McCain-Feingold provisions for political ads and should be regulated. Citizens United said it was a documentary, and FEC regulation was a violation of their First Amendment rights.

The order for a re-hearing was widely seen as an indication that the court was seriously considering a broad ruling striking down McCain-Feingold, and today's proceedings did little to make court-watchers feel differently. The basic question before the court: Does the Constitution allow the gov't to impose restrictions on independent expenditures by corporations in the political arena?

Kagan came close to acknowledging the gov't's poor chances under questioning by CJ John Roberts.

"If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose," she said at one point, "the answer is yes."

Four of the justices -- including newly-minted Justice Sonia Sotomayor -- urged the court to act narrowly. Justice Stephen Breyer warned that a broad ruling allowing corporations unfettered ability to spend money on campaign advocacy would pervert the political process.

"Would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but political parties couldn't, because political parties can only spend hard money on this kind of expenditure?" he asked ex-Solicitor Gen. Ted Olsen, who was representing Citizens United. "And therefore, the group that is charged with the responsibility of building a platform that will appeal to a majority of Americans is limited, but the groups that have particular interests, like corporations or trade unions, can spend as much as they want?"

Justice Anthony Kennedy, Antonin Scalia and Clarence Thomas have been critics of campaign-finance legislation in the past, and their questioning today reinforced those positions.

"Congress has a self interest," Scalia told Kagan during her presentation. "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."

That left the two George W. Bush-appointees, Roberts and Justice Samuel Alito. But reform supporters could not have been heartened by their questioning of counsel. Roberts was arguably Kagan's harshest inquisitor, at one point telling her, "We don't put our First Amendment rights in the hands of FEC bureaucrats."

Alito also seemed critical of her arguments, stating at one point that "more than half the states" permitted corporate campaign expenditures.

"Now, have they all been overwhelmed by corruption?" he asked Kagan, half-rhetorically. "A lot of money is spent on elections in California; has -- is there a record that the corporations have corrupted the political process there?"

SCOTUSblog's Kyle Denniston found one ray of hope for McCain-Feingold supporters, writing that the hearing "had the same overall feel" as the court's 4/29 hearing in NW Austin Municipal Utility Dist. v. Holder, when the court seemed likely to eviscerate a large portion of the Voting Rights Act. But, in that case, Roberts engineered a narrow ruling that left the law largely in tact while ruling against the gov't's position.

The court is expected to rule as early as 10/5, when the court returns for its '09 term. Some observers believe that the court may have ordered the rare Sept. hearing to give Congress a chance to debate legislation that meets the court's constitutional framework in advance of the '10 midterm elections.

(STEVEN SHEPARD)