WASHINGTON — The Obama administration's top lawyer Wednesday withdrew an earlier claim that certain books could be banned under campaign finance restrictions.
The legal retreat, though, didn't mollify conservative Supreme Court justices, who repeatedly challenged limits on corporate campaign expenditures. On a day of several judicial firsts, a divided court appeared poised to overturn at least some campaign restrictions.
"There is no place where an ongoing chill (against speech) is more dangerous than in an election context," stated Justice Anthony Kennedy, who's often a swing vote on the nine-member court.
Joined by Chief Justice John G. Roberts and justices Samuel Alito and Antonin Scalia, Kennedy vigorously pressed against rules that ban corporations from using their funds to pay for campaign activities. At the very least, the questioning during an unusually long and uniquely scheduled oral argument revealed deeply seated judicial skepticism about congressional efforts to regulate campaigns.
"I doubt we can expect a body of incumbents to draw election restrictions that don't favor incumbents," Scalia said. "Now, is that excessively cynical of me? I don't think so."
The case Citizens United v. Federal Election Commission is giving the Supreme Court the chance to overturn two prior high court decisions on campaign finance rules.
That, in itself, is unusual. Traditionally, the Supreme Court shies away from overturning precedent. Nor is the challenge to the principle of precedent, or stare decisis, the only unusual aspect of this case that has prompted an extraordinary 41 amicus briefs from outside parties.
The case, notably, has changed from what it used to look like. It began last year when producers of the anti-Hillary Clinton diatribe "Hillary: The Movie" opposed rules requiring them to reveal their donors. Since then, the case has expanded significantly to directly challenge broad campaign restrictions.
One prior Supreme Court decision now at risk, from 1990, upheld Michigan's ban on corporations using their general treasury funds for "independent expenditures" in support of a candidate. These expenditures are not given directly to a candidate, but instead pay for efforts such as ads and mailings. In a related 2003 case, the court upheld a federal law that banned corporations and unions from directly funding radio and television ads during campaign season.
"A corporation, after all, is not endowed by its creator with certain unalienable rights," noted Justice Ruth Bader Ginsburg.
Ginsburg and Justice Stephen Breyer both sounded most sympathetic to the campaign finance law. Both of the bill's Senate co-authors, Republican Sen. John McCain of Arizona and Democratic Sen. Russell Feingold of Wisconsin, closely observed the arguments in the courtroom.
"Of course I'm concerned," Feingold said following the arguments. "This is one of the greatest threats to our political system."
Justices devoted 93 minutes to the oral argument, 33 more minutes than usual. In another unusual touch, the argument was a repeat; after a first go-around last March, justices asked attorney Theodore Olson and the Obama administration to return and address the broader question of lifting the corporate campaign expenditure ban.
The argument marked the public debut of Justice Sonia Sotomayor, who began asking questions, with follow-ups, about 25 minutes into the session. Tellingly, she pressed attorneys on whether the court could lift some corporate campaign restrictions without making a broad constitutional ruling.
The oral argument also marked the public debut of Solicitor General Elena Kagan, a former Harvard Law School dean who is the nation's first female solicitor general. Kagan, who'd never argued a case before the Supreme Court, seemed at ease but at several points she conceded points that sounded like she was angling for as narrow a loss as possible.
Under questioning from Ginsburg, Kagan further backtracked from a claim made during March oral arguments. At the time, Deputy Solicitor General Malcolm Stewart asserted regulators could ban certain books during campaign season. Kagan surrendered the point Wednesday.
"We went back, we considered the matter carefully," Kagan said, adding several times that the Federal Election Commission "has never applied this statute to a book."
The answer didn't satisfy Roberts, who stressed "we don't put our First Amendment rights in the hands of FEC bureaucrats."
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