Supreme Court signals major election law reversal

WASHINGTON — President Theodore Roosevelt campaigned as a trust-busting reformer, but was embarrassed by revelations that his 1904 campaign had received secret contributions from New York insurance companies. At his urging, Congress passed a law to keep corporate money out of political races.

Now, that century-old ban might be overturned by the Supreme Court's conservative majority, which has embraced an equally venerable principle: free speech in politics.

The justices signaled the prospect of a profound shift in election law by scheduling an unusual special argument for Sept. 9. At issue will be whether to overturn two previous rulings that limit corporate spending in elections.

In the first, the court in 1990 upheld a state law barring corporations from using their "immense aggregations of wealth" to buy ads to oppose or endorse a candidate. Justices Anthony M. Kennedy and Antonin Scalia dissented.

The second was the 2003 ruling upholding the McCain-Feingold Act by a 5-4 vote, including its ban on corporate or union-funded broadcast ads that target a candidate in the month before an election. Justices Scalia, Kennedy and Clarence Thomas dissented, along with the late Chief Justice William H. Rehnquist.

The two precedents are endangered by a new case growing out of last year's presidential election and involving Hillary: The Movie.

Between the earlier rulings and the latest case, the makeup of the court has changed. Three years ago, the majority flipped when Justice Sandra Day O'Connor retired and Justice Samuel A. Alito Jr. replaced her. With O'Connor, a narrow majority supported the campaign finance laws. Now, five of the nine justices are skeptics and have said government restrictions on political spending violate the First Amendment.

Advocates of campaign funding laws are sounding the alarm. Striking down corporate spending limits would be "a radical step" that would change the character of elections, said Fred Wertheimer, president of the nonprofit Democracy 21.

Washington lawyer Trevor Potter, who last year advised Republican Sen. John McCain's presidential campaign, said "this could take us back to the era when people referred to the senator from Standard Oil."

Skeptics of the campaign-finance laws are not convinced.

"This would not be the end of democracy," said Bradley Smith, a law professor at Capital University in Ohio and a former chairman of Federal Election Commission. About half the states, including California and Illinois, permit corporations to spend freely in state races, he said, and few corporations have chosen to spend large sums in them.

At issue before the court is whether to erase the legal distinction between corporations and individuals.

"If dancing nude and burning the flag are protected by the First Amendment, why would it not protect robust speech about the people who are running for office?" asked Washington lawyer Theodore B. Olson, who is leading the attack.

He represents the company that produced Hillary: The Movie, which derided Hillary Rodham Clinton, then a U.S. senator running for president, as ruthless and untrustworthy.

Supreme Court signals major election law reversal 08/23/09 [Last modified: Sunday, August 23, 2009 11:17pm]

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