“This is the best conversation you’ll find in Washington,” is how Sen. Christopher Dodd (D.-Conn.) characterized the 90-minute oral arguments we had both heard on campaign finance limitations before the Supreme Court yesterday (September 9th).
Dodd was just one of the notables who filled the Court chamber and listened to justices question counsel on both sides in what is shaping up to be a landmark case on the nature of campaign finance. Others spotted in the audience were Sens. John McCain (R.-Az.) and Russ Feingold (D-Wi.), co-authors of the last major campaign finance law (which may be the big victim of high court’s eventual ruling in Citizens United v. the Federal Election Commission), and campaign finance “legal eagle” Cleta Mitchell, who has long argued that McCain-Feingold and similar legislation that limit campaign donations violate the First Amendment.
What began as a case to decide whether the Citizens United conservative group had violated restrictions on corporate campaign donations by producing and offering to run its film on ’08 presidential hopeful Hillary Clinton has mushroomed into a landmark legal case that may blow the cap off personal, union, and corporate donations to candidates for federal office.
At yesterday morning’s sessions, signs were strong that a decision which just might undo the pattern of limits on donations that have come out of the courts and Congress since 1907 might be in the works.
The four justices with a history of opposing limitations on campaign donations — Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito — all asked pointed questions of counsel for the government and for McCain and other defenders of spending limitations. Justice Clarence Thomas, as the Legal Times noted, “asked no questions, as is his custom, but he has been critical of the precedents in the past and is counted as a sure vote against most forms of campaign regulation.”
As news reports noted throughout the day, it was the first appearance in black robes for newly-minted Justice Sonia Sotomayor and the first-ever presentation before the Court by Solicitor General Elena Kagan, who made the argument for the government upholding the restrictions.
In my maiden assignment covering a Supreme Court argument, I found all but two other chairs filled in the press section off to the side of the chamber. Correspondents from as far away as Germany and Great Britain were there to hear a case that, as complex as it may have seemed to them, could change the nature of federal races in the United States.
Justice Scalia made the point, echoed by Chief Justice Roberts later in the morning, that “according to the U.S. Chamber of Commerce, 97% of the six million American corporations have assets less than $5 million” and less than one hundred employees. Yet the ban on corporate donations, he added, prohibits every corporation from making direct donations to candidates for federal office. This seemed like a not-so-subtle hint that the political system might not be corrupted if direct corporate donations were permitted.
Later in the morning, former Solicitor General Ted Olson (counsel for Citizens United) observed during an exchange with Justice Stephen Breyer that 27 states now have no limitations on corporate or personal donations. Roberts later repeated that figure and raised the question of whether those states have been “corrupted” and whether the laws of the federal government (“Big Brother,” as the chief justice at one point referred to the U.S. government) should override those of the states.
It was clear where at least these two jurist were coming from in their line of questioning: that it was not, as supporters of the campaign finance laws argue, a situation in which stare decisis (let the decision stand) and a reliance on precedent were sacrosanct and they would not be at all hesitant to overturn their ruling in the McConnell case six years ago (which upheld the constitutionality of McCain-Feingold while striking down some parts of it) or in the Austin case nineteen years ago, which upheld strong restrictions on corporate donations.
The court will meet again on October 5th. No one, of course, can determine what nine justice who meet in conference and write decisions in private will do. But the tone of the arguments yesterday and the clearly assertive nature of proven foes of campaign limitations clearly fueled the hopes of those who are hoping for a landmark decision based on the First Amendment.
Mark Corallo, former spokesman for the U.S. Department of Justice, may have put it best when he told me: “I know the reputation that Chief Justice Roberts has for doing this gradually and in parts. But I also know that the justices have records on the whole issue of campaign spending and financing. And when will they get an opportunity like this again?”