Sotomayor makes Supreme Court debut Wednesday

McClatchy NewspapersSeptember 7, 2009 

WASHINGTON — Newly minted Supreme Court Justice Sonia Sotomayor makes her debut Sept. 9 in a case that could overturn a decades-old ban on corporate campaign contributions.

And politics may never be the same again.

In the case Citizens United v. Federal Election Commission, the nation's first Latina Supreme Court justice and her eight colleagues must balance two competing priorities. One is to rid politics of corruption. The other is to protect free speech.

"Corporate speech adds value to our democratic society and should not be treated as a malignancy that the body politic rejects," argues Deborah La Fetra of the Sacramento-based Pacific Legal Foundation.

But consider what corporate money might buy, campaign reformers retort.

"The enormous wealth that corporations have amassed in the economic marketplace has the potential to flood the political marketplace," former FEC member Trevor Potter warns.

The Pacific Legal Foundation and Potter's D.C.-based Campaign Legal Center are two among many blitzing the justices with amicus briefs. The 41 friend-of-the-court briefs filed are far more than most Supreme Court cases receive, underscoring how serious principles and a lot of dollars are on the line.

The average House candidate raised $711,000 and the average Senate candidate raised $2.4 million during the same 2008 election cycle. This fundraising could accelerate if campaign restrictions were lifted.

A 1907 law, which has since been modified several times, prohibits corporations from making "money contribution(s) in connection with any election to any political office." Congress enacted the original law following revelations that life insurance companies helped underwrite Theodore Roosevelt's 1904 presidential campaign.

Consequently, corporations — and labor unions — can't contribute directly from their coffers. Instead, many have political action committees. These PACs collect funds from employees and members and then write big checks to candidates.

Telecommunications giant AT&T, for instance, cannot contribute directly. The AT&T PAC, though, contributed $3.1 million to federal candidates during 2007 and 2008. This was more than any other corporate PAC. With annual revenues exceeding $124 billion, some fear AT&T could tilt political campaigns if the ban on direct corporations were lifted.

"The vast sums at corporations' disposal create a much more formidable risk of corruption than those generally available to individuals," former Solicitor General Seth Waxman declared, in a brief filed for Republican Sen. John McCain and Democratic Sen. Russell Feingold.

Some believe otherwise, and the campaign finance reform dispute — including the potential significance of the Citizens United case — divides lawmakers.

Rep. Jim Costa, D-Calif., for one, is an effective fundraiser and pretty typical incumbent. Last election cycle, Costa raised $1 million; 53 percent came from political action committees. He shrugged off suggestions that allowing direct corporate contributions would alter fundraising much from the current reliance on political action committees.

"As long as there is accountability, I'm not so sure it makes that much of a difference," Costa said.

Citizens United v. Federal Election Commission did not start out as a direct challenge to the corporate contribution ban.

A non-profit conservative group, Citizens United in 2007 began production of "Hillary: The Movie." The 90-minute film was an unrelentingly negative look at then-Sen. Hillary Clinton, timed to appear during her presidential campaign.

"It is not a musical comedy," Supreme Court Justice Stephen Breyer noted during oral arguments last March.

Though the film avoided explicitly calling on people to vote for or against Clinton, a trial judge nonetheless concluded it was fundamentally a campaign device that fell under a 2002 campaign finance reform law. That meant the donors who financed the movie would have to be disclosed.

The case's implications began expanding during oral argument last March, when justices questioned how far federal regulations might stretch beyond conventional campaign advertising. What could happen, Chief Justice John Roberts Jr. asked, if a campaign-season book was published that "at the end" urges readers to vote for an individual?

"We could prohibit publication of the book using the corporate treasury funds," Deputy Solicitor General Malcolm Stewart said.

The implications clearly alarmed several justices, and three months later the court announced it would hear new arguments. Now, justices will explicitly consider whether to overturn a 1990 ruling that had upheld the ban on direct corporate contributions.

"When the government of the United States of America claims the authority to ban books because of their political speech, something has gone terribly wrong," declared attorney Theodore Olson, representing Citizens United.

But the real danger, Solicitor General Elena Kagan responds, comes from campaign excesses.

"If for-profit corporations were permitted to use treasury funds to finance all forms of candidate-related expression...the risk of corruption and the appearance of corruption would only increase," Kagan argued.

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