High Court may rule on campaign finance case

Groups’ spending on political races may be restricted

Several upcoming cases will shape the public perception of the court’s newest member, Justice Sonia Sotomayor. Several upcoming cases will shape the public perception of the court’s newest member, Justice Sonia Sotomayor.
By Robert Barnes
Washington Post / January 11, 2010

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WASHINGTON - The Supreme Court, which returns from its holiday break with some of its toughest cases ahead, could issue a decision this week that could rock the national political landscape before the midterm congressional elections.

The justices met privately Friday to pick through the stack of review requests that accumulated since their last public session, Dec. 14. And they will begin a new round of oral arguments today.

But it is an old case that is puzzling court observers and consuming the political world: a pending decision on whether restrictions on corporate and labor union spending on political campaigns violate the First Amendment.

It arose from a less significant question about whether a conservative group’s financing of and distribution plans for a documentary - “Hillary: The Movie,’’ a scathing account of Hillary Rodham Clinton’s presidential pursuit - violated the McCain-Feingold Bipartisan Campaign Reform Act.

The court heard oral arguments on the original question in March 2009, but adjourned in June without a decision. Instead, the justices said they would consider the larger question of whether it is constitutional to ban corporations and labor unions from drawing funds from their general treasuries to support or oppose candidates.

A ruling could come as early as tomorrow.

For decades, Congress has outlawed such expenditures, and 22 states have similar bans. Both sides agree that a ruling saying such restrictions are unconstitutional would mean a sea change in the way political campaigns are funded.

The court’s decision to hear the larger question in September, in advance of its regular term, was seen as a possible attempt to expedite the ruling before the midterm primary season. But not much time is left; Illinois will hold elections Feb. 2.

At the September arguments in Citizens United v. Federal Elections Commission, the more conservative justices indicated deep skepticism about the constitutionality of the bans on corporate spending. But because of the circumspect court’s private deliberations, it is hard to speculate about the cause for delay - except that the justices are deeply divided.

One possibility is that a broad decision declaring the restrictions unconstitutional has drawn lengthy dissents from those in the minority, who have no incentive for rushing the ruling. But equally possible is a failure to find a majority for such clear guidance and a multitude of competing opinions in which a narrow majority agrees only on the outcome in this specific case.

The new year will bring at least a few new cases to a docket that is mostly full - the court traditionally stops hearing oral arguments in April. The court has already taken at least one case that will command the nation’s attention: whether the Second Amendment right to personal ownership of firearms that rendered unconstitutional the handgun ban in the federal enclave of Washington also applies to state and city attempts to severely restrict gun ownership.

And all will be watching Justice John Paul Stevens for additional signs that he plans to retire and give President Obama a second opportunity to nominate a justice. Stevens will celebrate his 90th birthday in April, and he has prompted the speculation by hiring only one clerk for the term that begins in October. Retired justices have one clerk; active justices hire four.

More will also be learned about the court’s newest member, Justice Sonia Sotomayor, 55.

Three cases on the docket might focus more attention on the court’s newest member:

■ Praised by Obama as the “judge who saved baseball’’ because of her role in a case involving the Major League Baseball strike, Sotomayor and the rest of the court will turn to other sports in deciding an antitrust case brought against the National Football League, American Needle v. NFL.

■ In an international custody case, Abbott v. Abbott, the court will consider the protections in a treaty meant to discourage child abduction. Sotomayor dealt with the treaty as an appellate judge.

■ In a third, she could play a key role in deciding how to implement a decision the court reached seven months ago - or whether it should be reversed.

Sotomayor’s influence is outsized in Briscoe v. Virginia because David Souter, the justice she replaced, was in the majority of the 5-to-4 ruling that defendants have the right to question crime lab analysts about the reports they produce.