High court to reassess election financing

Anti-Clinton film is at issue

EVAN VUCCI/ASSOCIATED PRESS FILEDavid Bossie, leader of Citizens United, was the producer of the scathing film about Hillary Clinton. EVAN VUCCI/ASSOCIATED PRESS FILEDavid Bossie, leader of Citizens United, was the producer of the scathing film about Hillary Clinton. (Evan Vucci/Associated Press File)
By Robert Barnes
Washington Post / September 6, 2009

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WASHINGTON - More than 100 years of restrictions on corporate support of political candidates will be at stake this week when the Supreme Court considers whether a quirky case about a film denouncing Hillary Rodham Clinton should lead to a rewrite of the way federal US elections are financed.

In an unusual hearing in the midst of their summer recess, the justices will decide whether to move beyond the particulars of “Hillary: The Movie’’ to more profound questions about the First Amendment’s guarantee of free speech and how that squares with political spending.

The justices will consider casting aside previous rulings that uphold laws restricting corporate support of political candidates.

The court ruled in 1990 that corporations, because of their “immense aggregations of wealth,’’ possessed a unique ability to drown out the voices of individuals in the nation’s political conversation. That precedent was reinforced in 2003 when the court upheld the federal campaign finance law that limits the electoral influence of corporations, unions, and special interest groups.

Conservative justices have chafed at the restrictions, especially in the federal legislation known as the McCain-Feingold Act. And they have been joined by like-minded colleagues in Chief Justice John Roberts and Justice Samuel Alito.

That the court would overturn a decision made as recently as 2003 has advocates of campaign finance reform erupting about “judicial activism’’ and speaking in apocalyptic terms.

“It would unleash corporations to use their massive wealth to overwhelm the federal system, with disastrous consequences for the country,’’ said Fred Wertheimer, a campaign finance reformer who now heads Democracy 21, a watchdog group. He imagines corporations demanding fealty from lawmakers on health bills or auto industry bailouts with the promise of millions of dollars for their campaigns.

Others see the potential for partisan advantage.

“If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fund-raising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama,’’ Richard Hasen, an election law scholar at Loyola Law School in Los Angeles, wrote for the online magazine Slate.

But Bradley Smith, a former chairman of the Federal Election Commission who has urged the court to overturn the precedents, said that the “sky-is-falling rhetoric of the other side is simply not true.’’ Smith, a Republican appointee to the commission, said there is no evidence that corporations would spend millions of dollars of their profits targeting specific lawmakers.

While nearly half the states ban or greatly restrict corporate spending on behalf of candidates - and could have their laws rendered unconstitutional by the court’s decision - the rest do not, Smith said. States such as California, Texas, and Virginia allow corporate spending, without the “predicted catastrophes’’ advanced by advocates of campaign finance reform, he said.

The case at hand arises from a conservative group’s production of a scathing look at Clinton produced during her run for the 2008 Democratic presidential nomination.

A lower court said the film ran afoul of a McCain-Feingold provision that forbids corporations, unions, and special interest groups from using money from their general treasuries for “any broadcast, cable, or satellite communications’’ that refer to a candidate for federal office during election season.

In the past, that has meant 30-second to one-minute campaign ads. But the lower court said the same rule applied to Citizens United’s 90-minute film about Clinton, which it proposed to broadcast on cable channels.