All the atmospherics about the extraordinary Sept. 9 oral argument on campaign finance reform at the U.S. Supreme Court scream "landmark!" or, at least, "very big deal!"
The details are familiar by now. The uniqueness of a September sitting, when the Court usually starts up in October. The first time new Justice Sonia Sotomayor will be on the bench at argument, bumping the other associate justices into new seats for the first time in three years. The debut also of Solicitor General Elena Kagan -- will she wear the swallowtail morning coat or not? -- matched up with other titans of the Supreme Court bar. Former SG Seth Waxman will argue on her side, and former SG Theodore Olson against her.
Throw in Floyd Abrams, the urbane doyen of the First Amendment bar arguing on Olson's side, and you have a tableau made for Hollywood. (Abrams played a judge in the movie "Nothing But the Truth" last year.)
But for the packed crowd of spectators, how will they know when the case being argued, Citizens United v. Federal Election Commission, really is a big deal beneath the glitz and uniqueness of it all? When will it be clear that the Supreme Court is ready to toss out decades of laws and precedents, including a major chunk of McCain-Feingold law, that limit corporate and union expenditures in federal elections? Or, alternatively, when might it suddenly seem possible that the Court will step back from the precipice, as it did several times last term with similarly momentous cases?
To hear opponents -- and some glum supporters -- of expenditure limits, the outcome is known even before Chief Justice John Roberts Jr. calls the case. With justices Antonin Scalia, Clarence Thomas and Anthony Kennedy already on record opposing Austin v. Michigan Chamber of Commerce, the main precedent at issue, and both Roberts and Samuel Alito Jr. voicing skepticism about a range of campaign regulations, the case might already be lost before Kagan and Waxman utter a word. Alito replaced Sandra Day O'Connor, who mainly supported McCain-Feingold in the 2003 case McConnell v. FEC.
It was Alito who reacted the most violently when the case was first argued in March. That's when Deputy Solicitor General Malcolm Stewart made the damaging acknowledgment that, under some circumstances, even a book, if it advocates for or against a candidate and is funded by a corporation or a union, could be banned under McCain-Feingold and the precedents at issue in the case. "That's pretty incredible," Alito said.
What started out as a dispute over a quasi-documentary that attacked Hillary Clinton had morphed into a case that could threaten the iconic, if aging, format of the printed page between covers. That may be why the Court ordered the case re-argued and re-briefed on the question of whether the precedents should be overturned.
So if Alito or another justice leans forward on Wednesday and asks Kagan about the potential book-banning business, then the restrictions on independent corporate expenditures in campaigns are probably toast.
If a justice doesn't ask about book banning, said Wiley Rein partner Jan Baran, "Ted Olson is likely to bring it up." The mere mention of book banning would repel justices of all stripes, he added, and it's a valid issue to raise. "Malcolm Stewart's only fault was being completely honest," said Baran, who filed a brief in the case for the U.S. Chamber of Commerce.
But Fred Wertheimer of Democracy 21, a longtime campaign reform advocate and strategist, thinks Kagan can parry the book-banning point, which he calls "a red herring," adding that she should point out that, in the 60-plus years there's been a ban on corporate expenditures, a book has never been the target of enforcement. What's more, Wertheimer said, exemptions for commercial transactions and the media will safeguard against censorship.
Wertheimer and other advocates of campaign regulation think their best shot at winning is to argue in favor of stare decisis -- preserving precedent -- and constitutional avoidance, the doctrine that counsels for resolving cases on nonconstitutional grounds if possible. Roberts, in statements at his 2005 confirmation hearings and in his rulings, has embraced both doctrines. So if the justices spend a lot of time on the weight of precedent, that might be a glimmer of hope for supporters of expenditure restrictions. Olson, for his part, will try to knock down that argument by portraying Austin as a "jurisprudential outlier" unworthy of saving.
Doug Kendall of the Constitutional Accountability Center, who filed a brief in favor of the campaign regulation, said he'll be hoping that the justices dwell on the question of whether the Hillary Clinton movie even fits the definition of election communications that cannot be funded by corporate or union money. "That will be positive," he said, because it may mean the Court is looking for a way to rule for Citizens United without tossing out Austin.
But Kendall is not willing to concede defeat, regardless of how the argument turns out. "Until five justices decide to overturn a precedent as established as Austin, I don't think anyone should predict they will do so."
That begs the question, though, of why the Court would decide to put on this week's preseason show in the first place if it was going to rule narrowly. Said Baran, "The Court would not have taken this extraordinary step if it wasn't seriously considering doing something big."
