Ken Klukowski: Justices Tackle McCain-Feingold While Sotomayor Throws a Curve


ACRU Staff


September 16, 2009

This column originally appeared on on September 15, 2009.

September 9, 2009 was a historic day at the U.S. Supreme Court. Meeting in special session, the Court considered a legal challenge pitting Barack Obama’s top Supreme Court lawyer against a living legend in a major First Amendment case that will forever shape how elections are conducted in America. And in her Supreme Court debut, Sonia Sotomayor gave the first hint of what kind of justice she will be.

In an unusual move, the Court cut short its summer recess, holding a special session to rehear new arguments in Citizens United v. FEC. The group Citizens United, run by public-interest veteran David Bossie, had produced documentaries critical of Hillary Clinton and Barack Obama during the 2008 election season, which the FEC then banned.

But all eyes were on Justice Sotomayor in her first Supreme Court appearance. She questioned the issue of Citizens United’s free speech rights. At the end of the exchange, referring to the fact that all business entities are created by the state, Sotomayor commented that perhaps it was, “the Court’s error to start with … that the Court imbued a creature of state law with human characteristics.”

This raises eyebrows, because every right that Americans enjoy when running a business or acting as a group comes from every corporation being considered a “person.” That’s why the NRA or U.S. Chamber of Commerce or the Red Cross or Citizens United have the First Amendment rights to advertise, to speak out, to mail letters, or even to own property.

If those groups are not imbued with “human characteristics” by being treated as persons, then the government could permanently muzzle them, and not allow any groups to ever speak about politicians or public issues. Moreover, the government would be able to seize all of their assets (including property and bank accounts) at any time, search their records without a warrant, and even deny these organizations the right to file federal lawsuits.

We can only assume that Justice Sotomayor did not mean any of those things, since they would be an earthquake in American law that could completely destabilize our entire economic system.

But we won’t have to guess. Justice Sotomayor could be on the Court for the next 30 years, so we’ll have ample opportunity to learn exactly what Barack Obama’s pick for the Court believes on this and many other issues.

Our first indication will come when the Court decides the Citizens United case, expected to happen before the Court’s annual term starts on October 5.

This case over the Hillary and Obama movies will have far-reaching consequences. The FEC had ruled that it would be a federal felony, punishable by five years in prison, for Citizens United to have Video On Demand show either of those movies just before an election or primary. Those draconian penalties come from a provision in the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold. Citizens United (rightly) argued that this part of BCRA violates the First Amendment.

Representing the Obama administration was Solicitor General Elena Kagan, who might be President Obama’s next Supreme Court nominee if, as expected, Justice Stevens retires from the Court next year. Kagan’s opponent was former Bush Solicitor General Ted Olson, widely regarded as the best Supreme Court lawyer in the country.

Olson dominated the argument in the Citizens United hearing. The liberal justices came after him, with Justices Stevens and Breyer aggressively questioning Olson, who parried with humor while deflecting their arguments.

Kagan didn’t fare as well. She admitted abandoning the Obama administration’s earlier positions, instead arguing that government must be able to ban movies and other election-related communications to prevent organizations from promoting a message with which the shareholders disagree because they can’t monitor the corporations they own, or because of corruption arising from a quid pro quo.

Chief Justice John Roberts seemed incredulous, characterizing Kagan’s position as, “we the government, Big Brother, has to protect shareholders from themselves,” or that, “we the government have to protect you naive shareholders.” He pointed out that the two Supreme Court precedents the FEC was seeking to preserve in this lawsuit to protect McCain-Feingold never even hinted at such things.

That’s unfortunate for the Obama administration, because the swing vote in this case is Chief Justice Roberts, not the usual Justice Kennedy. (Not that it makes any difference, because Kennedy also signaled that he wasn’t buying Kagan’s argument.)

But it’s fortunate for the American republic. Robust public debate is essential to democracy, and we’ll find out shortly if the Supreme Court is willing to restore Americans’ right to speak out during elections.



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