Sonia Sotomayor, the Supreme Court’s first Hispanic justice, made her debut appearance on the high court on Wednesday, quickly asserting herself in a campaign finance case that could expand the involvement of corporations, trade association and unions into federal elections.
The case, Citizens United v. Federal Election Commission, involves a nonprofit organization that asked a court for permission last election cycle to promote and distribute “Hillary: The Movie,— a feature-length production the group hoped to show on cable television through video-on-demand in the days and weeks before last year’s Democratic primaries.
The high court in June asked to re-hear the case, which was originally argued earlier this year. Bush administration Solicitor General Theodore Olson and attorney Floyd Abrams argued the case on behalf of the conservative nonprofit organization, while Clinton administration Solicitor General Seth Waxman and current Solicitor General Elena Kagan — making her first argument on behalf of the federal government — made the case for the FEC.
Early on, Olson encountered tough criticism from liberal Justice Ruth Bader Ginsburg, who questioned whether individuals and corporations share the same constitutional protections.
“Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment’s guarantee of free speech,— Olson argued, according to a preliminary transcript of the proceedings. “Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations, any union or any corporation.—
“Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual?— Ginsburg responded. “A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?—
Justice Stephen Breyer, a liberal, later asked Olson to speculate what the effect would be on the Republican National Committee, the Democratic Congressional Campaign Committee and other political entities subject to campaign contribution limits if the Supreme Court allows corporations, unions and trade associates to spend unlimited amounts of money on political ads that advocate on behalf of or against federal candidates.
“Would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but political parties couldn’t, because political parties can only spend hard money on this kind of expenditure?— Breyer asked.
In her initial round of questioning, Sotomayor asked whether a ruling in favor of Citizens United threatens the state and federal legislative process.
“The one thing that is very interesting about this area of law for the last 100 years is the active involvement of both State and Federal legislatures in trying to find that balance between the interest of protecting in their views how the electoral process should proceed and the interests of the First Amendment,— Sotomayor said. “And so my question to you is, once we say they can’t, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process?—
Conservative Chief Justice John Roberts, along with Justices Antonin Scalia and Samuel Alito, provided tough questioning for Waxman and Kagan. Scalia argued that the high court should be skeptical of the Bipartisan Campaign Reform Act and other election laws written by those who have the most to lose: Members of Congress.
“Congress has a self-interest. I mean, we — we are suspicious of Congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents,— Scalia said. “Now is that excessively cynical of me? I don’t think so.—
“I think, Justice Scalia, it’s wrong,— Kagan responded. “In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done.—
“If you look at the last election cycle and look at corporate [political action committee] money and ask where it goes, it goes ten times more to incumbents than to challengers, and in the prior election cycle even more than that,— she continued. “And for an obvious reason, because when corporations play in the political process, they want winners, they want people who will produce outcomes for them, and they know that the way to get those outcomes, the way to get those winners is to invest in incumbents, and so that’s what they do.—
The Supreme Court is expected to decide the case before Jan. 1.