Not waiting for the first Monday in October, the Supreme Court returned Wednesday for arguments in a case that could transform American politics. In its ruling, the court could reverse decades of its own decisions that have blocked corporate spending on federal candidate elections.
Wednesday's case involves a scorching 90-minute movie critique of Hillary Clinton, produced by a group that wanted to run it on cable TV during the 2008 presidential primary season. The film portrayed Clinton as intolerant, vindictive and sneaky.
The Federal Election Commission and a lower court ruled that the movie would amount to a political ad, and because it was paid for in part with corporate money, federal law banned it from broadcast just before the primary elections.
The court first heard arguments in the case on narrow grounds during the last term, but then ordered a second round of arguments focused on whether Congress may strictly limit corporate money in federal elections, as it has for more than 100 years.
Leading off the argument was former Solicitor General Ted Olson, who said corporations have the right to free speech during elections, just as individuals do.
He faced a skeptical Justice Ruth Bader Ginsburg, who asked whether corporate rights aren't different from those of an individual. "A corporation," she said, "is not endowed by its creator with inalienable rights."
Ginsburg noted that corporations are free to spend money on elections through political action committees that collect individual contributions for campaigns. Olson rejected that as a solution, saying it turns corporations into ventriloquists.
When Olson argued that Congress must have a compelling reason to limit corporate speech, Justice Stephen Breyer said the compelling argument is that "people think representatives are being bought."
Breyer got Olson to concede that if corporations win the right to spend unlimited and undisclosed amounts in campaigns, they will be able to spend far more than the political parties are allowed to under federal law. In short, Breyer said, the court will have made a hash of the McCain-Feingold campaign reform law passed in 2002 and upheld by the Supreme Court a year later.
A Long History
New Justice Sonia Sotomayor focused her questions on congressional versus court power, noting that Congress and the states have sought to achieve a balance between allowing free speech and curbing the potential for corruption in campaign spending.
Also making her Supreme Court debut Wednesday was new Solicitor General Elena Kagan. She said for more than 100 years, Congress has judged that corporations have to be covered by special rules in federal campaign spending. She said the Supreme Court never questioned that judgment.
"We never questioned it, but we never approved it, either," protested Justice Antonin Scalia.
Kagan replied that "faced with many opportunities to do so ... [this court] left standing the legislation that is at issue in this case."
But the court's most conservative members seemed to give her cause for pessimism. She offered a narrow ground on which they could rule against her, saying that's how the government would prefer to lose "if it has to lose."
Justice Anthony Kennedy said Congress is seeking to silence corporate expertise. Justice Samuel Alito observed that half the states allow corporate spending in candidate elections, and they have not been overwhelmed by corporate corruption. And Scalia contended that Congress wrote the law to benefit its own incumbents.
A decision in the case is expected later in the court term.