The U.S. Supreme Court heard oral arguments this week in a highly consequential case that could invalidate laws designed to keep corporations from directly spending money to influence elections. A majority of justices on this conservative court sound inclined to overturn the decades-old ban when a much narrower approach would be sufficient.
The case of Citizens United vs. Federal Election Commission concerns Hillary: The Movie, a 90-minute documentary excoriating Sen. Hillary Clinton and intended for video-on-demand cable television viewing during Clinton's presidential primary battle. The narrow issue is whether this is the kind of electioneering communication that can be banned from appearing on broadcast or cable TV within 30 days of a primary and 60 days of a general election.
Federal campaign finance law bars the use of for-profit corporate money in electioneering. Citizens United is a nonprofit corporation that has received contributions from for-profit corporations, though it's largely funded by individual contributions. The advocacy group produced the movie and defends its distribution during the presidential primaries. It argues that a full-length film isn't like the 60-second attack ads that the law was intended to ban and that to limit the movie's distribution or the ads promoting the film is a violation of the First Amendment.
This set of facts makes for a compelling case. A full-length movie, even one designed to denigrate a candidate near an election, should not be suppressed or subject its distributor to criminal penalties. Moreover, a nonprofit advocacy group promoting an ideology, even if a small amount of its funding comes from for-profit corporations, is not the same thing as, say, a big pharmaceutical company or oil company that could spend huge amounts of money to influence the outcome of an election to advance its business interests.
The court should narrowly rule for Citizens United without establishing new First Amendment rights for all for-profit corporations and tossing out long-established precedent. It could find that campaign finance law doesn't apply to advocacy groups where the bulk of their funding is from individual contributions. Or the court could determine that Hillary: The Movie falls outside the definition of an "electioneering communication" for the purposes of the law.
But the conservatives on the Supreme Court seem to want to take the more activist route and rule broadly. This case was first argued in March, but the court scheduled a rare second round of oral arguments and asked for supplemental briefing on whether the court should overrule two precedents that had upheld restrictions on corporate electioneering.
It would be a particular disappointment if Chief Justice John Roberts sided with fellow conservative justices who seek to unleash corporate money on federal elections. Roberts promised during his confirmation hearing to respect precedent, and conservatives routinely complain about activist judges. To exploit the unusual circumstances of this case to pursue a much broader goal and allow corporate money to drown out the voices of individual citizens in the electoral process would be activism at its worst.