Gavel Grab

In an extraordinary hearing, the U.S. Supreme Court listened to vigorous argument today over whether  to overturn limits on direct corporate and labor union spending for political candidates. Afterward, many analysts expected a defeat for government regulators.

The unusual rehearing pitted Citizens United, a conservative nonprofit advocacy group, against the Federal Election Commission. Conservative justices expressed extreme discomfort over limits the government has placed on corporate spending for candidate elections, the Washington Post reported.

News articles in the New York Times and by the Associated Press, based on the justices’ questions today and their prior stances, suggested the Supreme Court may rule in favor of Citizens United–although it was unclear whether a narrow or broad ruling would be written. C-SPAN has posted an audio link of the hearing.

U.S. Solicitor General Elena Kagan came close to saying the government could accept a loss, as long as it was framed narrowly, according to the Times.

But lawyer Theodore B. Olson, representing Citizens United, advocated a broad ruling that would overturn two key precedents for government limits on corporate  spending for candidates. “Robust debate…is the most fundamental value” that the First Amendment protects, the Associated Press quoted Olson as saying. In this case the government “has prohibited speech,” he said.

Attention was focused on whether Chief Justice John G. Roberts Jr. and Justice Samuel Alito, both conservatives, would be willing to overturn precedent that has upheld restrictions on corporate political spending.

A veteran court-watcher, Lyle Denniston, offered comment on those two justices in SCOTUSblog, where he wrote:

“If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question.

“Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.”

At Election Law Blog, election law expert Rick Hasen gave a moment-by-moment account of the court’s questioning by listening to an audio recording. “Wow.  What a hot bench. The Justices are fighting to get their questions out,” Hasen wrote at one juncture.

The case originally involved a documentary attacking Hillary Rodham Clinton during last year’s presidential primary season. With the high court’s decision to order a rehearing, it morphed into a debate over precedents that many regard as pillars of current campaign finance law.

Justice Sonia Sotomayor, making her first appearance on the bench today,  plunged into the questioning. According to the Associated Press, Sotomayor “appeared skeptical about taking the far-reaching step of lifting the ban.”

Sens. John McCain and Russ Feingold, lead sponsors of the Bipartisan Campaign Reform Act of 2002, held a news conference after the court arguments and “blasted justices for what they said was being dangerously out of touch,” according to The Hill newspaper.

To read Justice at Stake’s amicus brief submitted to the court, click here, and for an analysis today by Bert Brandenburg, executive director of Justice at Stake, see GavelGrab or the American Constitution Society for Law and Policy blog. You can read comprehensive coverage from earlier GavelGrab postings about the case here. A transcript of the Supreme Court arguments is available here.