WASHINGTON — There seemed little question after the argument in an important campaign finance case at the Supreme Court on Wednesday that the makers of a slashing political documentary about Hillary Rodham Clinton were poised to win. The only open question was how broad that victory would be.
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Elena Kagan, the solicitor general, all but said that a loss for the government would be acceptable, so long as it was on narrow grounds.

She suggested that the Citizens United, the conservative advocacy group that produced the documentary, “Hillary: The Movie,” may not be the sort of corporation to which campaign finance restrictions should apply. The group lost a lawsuit last year against the Federal Election Commission in which it had sought permission to distribute the film on a cable television service.

Theodore B. Olson, a lawyer for Citizens United, argued for a broad ruling that would reverse two precedents allowing the government to restrict the campaign speech of all sorts of corporations notwithstanding the First Amendment.

That prompted a question from Justice Sonia Sotomayor, her first as a Supreme Court justice. “Are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?” she asked Mr. Olson.

Indeed, it would not be hard for the court to rule in favor of Citizens United by interpreting or narrowing the 2002 McCain-Feingold campaign finance law, which bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election.

The law, as narrowed by a 2007 Supreme Court decision, applies to communications ”susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

The court could say, for instance, that the law was not meant to address 90-minute documentaries like the one at issue. It could say that the way Citizens United wanted to distribute the documentary, on a cable video-on-demand service, was not covered by the law. Or it could, as Ms. Kagan suggested, carve out some kinds of corporations.

Mr. Olson indicated that he was prepared to accept any sort of victory but that the court would have to confront the larger question soon enough.

Arguing on behalf of Senator Mitch McConnell of Kentucky, the Republican leader, Floyd Abrams reminded the court that it could have decided New York Times v. Sullivan, the 1964 decision that revolutionized the law of libel, on quite narrow grounds. When First Amendment rights are in danger, Mr. Abrams said, bold action is sometimes required.

Lyle Dennison agrees that at least two campaign finance precedents would seem to be in jeopardy:

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

The Court probed deeply into Congress’ reasoning in its decades-long attempt to restrict corporate influence in campaigns for the Presidency and Congress, in a special sitting to hear a second time the case of Citizens United v. Federal Election Commission (08-205). At issue was whether the Court was ready to overturn two of its precedents — one from 1990, the other from 2003 — upholding such limitations.

From all appearances, not one of the nine Justices — including the newest Justice, Sonia Sotomayor — appeared to move away from what their positions had been expected in advance to be. In her first argument, Sotomayor fervently joined in the effort to keep any resulting decision narrow — seemingly, the minority position but one she had been assumed to hold.

Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.

You can listen to the full audio of today’s oral argument here.

The Supreme Court’s unusual hearing Wednesday on the role corporations can play in influencing elections carries the potential not only for rewriting the nation’s campaign finance laws but also for testing the willingness of the court led by Chief Justice John G. Roberts Jr. to defy the decisions of Congress and to set aside its own precedents.

The court will consider whether the “proper disposition” of a case — pitting a conservative group’s scorching campaign film about Hillary Rodham Clinton against federal campaign finance laws — requires overturning two decisions that said government has an interest in restricting the political activities and speech of corporations.

(…)

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

“I don’t think people should underestimate the chief justice’s ability to look down the road,” said Washington attorney David C. Frederick, who frequently argues before the court. “I think he’s got a larger constitutional vision. He’s relatively young and looking into the future.”

(…)

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

“I don’t think people should underestimate the chief justice’s ability to look down the road,” said Washington attorney David C. Frederick, who frequently argues before the court. “I think he’s got a larger constitutional vision. He’s relatively young and looking into the future.”

The case, Citizens United v. Federal Election Commission, has already been heard once by the Court. However, in June, the Court took the somewhat unusual step of asking the attorneys for both sides to re-brief and re-argue to address the question of “whether the court should overturn its earlier rulings on limiting corporate and union contributions in federal elections.”

As I said at the time, this seems to indicate that there’s at least some sentiment on the Court for revisiting previous ruling and, perhaps, putting a stake into the heart of one of the most invidious pieces of legislation of the past decade.

One can only hope so, at least.

But perhaps I spoke too soon. Yes, California voters are more than willing to vote for huge spending to be financed by bonds. That’s a big problem, if the spending (and thus the bonds) occur. But if Tim Cavanaugh of Reason is correct, it’s not the problem I once thought. Why not? The state isn’t spending the money:

One favorite trick for avoiding disaster at the level of state budgets is to keep authorized expenditures cooped up by never writing the checks. This practice can go on for years or decades, depending on the lobbying power of the people who stand to gain from the spending. A former California budget director once set my mind at ease when I asked about the hundreds of billions of dollars in bonded debt the ballot-initiative mobocracy has committed the state to. It turned out that only a small portion of those bonds had been issued. (And it’s pretty stunning to consider that the Golden State’s fiscal self-destruction would be even worse if anybody took an interest in honoring the will of the voters.)

So, that is good one one front. The state has shielded us from some of the stupidity inherent in democracy.

But there’s another worse aspect. The state has spent us into oblivion even without the voters’ help! I used to think it was a competition between idiotic direct democracy voters and idiotic gerrymandered politicos in an effort to bankrupt the state. It turns out I was wrong — the politicos want to hoard all the “glory” for themselves!

During oral arguments, the government’s attorney revealed that campaign finance law as currently written could be interpreted to restrict not only documentaries such as “Hillary” but any other political speech “broadcast” during a campaign. A banned “broadcast” could include a store advertising the sale of candidate dolls, toys, or action figures. Even if the advertisement makes no direct endorsements nor advocates the defeat of a candidate, the mere mention of a candidate’s name or likeness would violate current election law.

But surely books would be safe…right?

Not if the book is “broadcast” on a device such as a Kindle, says the government’s attorney. While the FEC believes “dead tree editions” are currently safe from FEC regulation, former Chief of Staff and Council of the FEC Allison Hayward, says that such regulations could be imposed if congress brought such an interpretation into the law.

In the very beginning of the video below, Steve Simpson, Senior Attorney for the Institute for Justice says something which bears repeating here because he captures exactly the First Amendment problems found in current campaign finance law:

“The problem is not too much money in politics; the problem is too much power in government. Government regulates everything and of course, people want to affect the course of the government. So the campaign finance reformers ultimately what they want to prevent is that. It’s the ability to affect the course of our government; it’s the ability to affect which way people vote. That’s the dirty little secret of campaign finance law. They don’t just want to control money, they want to control speech.”

I would like to believe that free speech will ultimately prevail in Citizens United v. Federal Elections Commission, but given SCOTUS’s history, ruling on the side of the Constitution is by no means sure thing. I also can’t help but wonder how an Obama appointed Justice would rule if this case was before him or her. Which side would receive the most “empathy,” the federal government or a private organization or individual citizen? We already know that such a judge would not be considering “abstract legal theories” such as entailed in the First Amendment.

The Supreme Court yesterday appeared ready once again to trim the reach of the McCain-Feingold campaign finance reform act, this time at the behest of a conservative group that produced a withering 90-minute political film called “Hillary: The Movie.”

And that was even before the government’s lawyer rattled the justices by asserting that Congress possessed the power — hypothetically — to ban some political books before an election

After a rollicking one-hour argument, it seemed that the question was whether a majority of the court wanted to use an ax or a scalpel to whittle the law, Congress’s embattled attempt to limit the electoral influence of corporations, unions and special interest groups. It is known formally as the Bipartisan Campaign Reform Act of 2002.

While it’s not always easy to predict where the Court will come out based on oral argument, it seems fairly evidence that a majority was skeptical of the government’s application of the law in this case.

That’s a good sign.

“LOS ANGELES, March 9 /PRNewswire/ — In a significant move for open-election laws, the U.S. Supreme Court today rejected an attempt to overturn a federal Ninth Circuit Court of Appeals’ decision that the state of Arizona could not require independent presidential candidates to register earlier than candidates affiliated with major political parties.

Arizona’s petition for certiorari to the Supreme Court had been closely watched after 13 other states supported Arizona’s bid to have the High Court hear the case. The federal civil rights case, originally filed in Arizona federal district court, stems from Nader’s 2004 presidency bid.

Ralph Nader had challenged the deadline, contending it violated his First Amendment rights to free speech and political association. Lead Attorney Robert Barnes of the Bernhoft Law Firm represented Nader before the Ninth Circuit, which overturned the district court and unanimously declared the Arizona law unconstitutional. Nader’s Bernhoft Law legal team successfully argued that requiring independent candidates to register by June was unfair when the two major political parties did not hold their conventions until the fall.

Perhaps as just as important was the other aspect of Nader’s challenge was the lower court striking down the provision in Arizona law which required petition circulators to be registered to vote within the state. Paul Jacob and others can now circulate petitions to any state government without fear of being put in jail. What a concept!