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Vacancy Reignites Campaign Finance Battle

Long the stuff of dry inside-the-Beltway machinations, campaign finance law may take center stage this summer during the confirmation of President Barack Obama’s Supreme Court nominee, thanks to the court’s decision earlier this year to undo a century’s worth of corporate restrictions.

The controversial ruling in Citizens United v. Federal Election Commission — in which the high court’s conservative wing overturned limits on corporate spending during elections — has infuriated Democrats, who have cited it as a prime example of the court’s conservative activism in favor of wealthy interests.

And Obama signaled that he will be looking for a nominee who shares his disdain for the Citizens United case.

Following Justice John Paul Stevens’ announcement that he will retire at the end of this term, Obama said that he would look for a candidate with “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of the law, and a keen understanding of how the law affects the daily lives of the American people” and who understands that “powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Senate Democratic Conference Vice Chairman Charles Schumer (N.Y.) said he also wants a nominee who understands the effects of decisions on average Americans, arguing the Citizens United case demonstrated “how the court had lost the practical impact of some of its decisions.”

J. Gerry Hebert, executive director of the Campaign Legal Center, said Democrats and the White House will make a high-profile stand on the issue against Republican attacks. “It’s understandable that the case would take center stage somewhat. … [It was] one of the most radical undertakings of the Supreme Court in decades,” Hebert said.

He added, “I think you’re going to see Democrats with a very stiff back” when it comes to supporting the nominee.

Hebert also predicted that Democrats in their private meetings and during the hearings will push the nominee on his or her view of following precedents. Hebert noted that while Chief Justice John Roberts went to great lengths during his hearings to paint himself as a strict believer in sticking to previous court rulings, the Citizens United decision reverses more than a century of established law.

“They’re not just going to accept at face value someone’s assertion they accept precedent,” Hebert said. “I think they’re going to probe much deeper in light of what happened with Citizens United.”

Republicans, meanwhile, generally support the decision — and will do their best to keep off the Supreme Court anyone who would overturn it. As a result, the issue is sure to figure prominently in private meetings with the eventual nominee as well as public messaging campaigns and confirmation hearings.

National Republican Senatorial Committee Chairman John Cornyn (Texas), who serves on the Judiciary Committee, said conservatives understand the potential “danger” that Obama is trying to stack the court with liberal-minded judges and believes a fight over Citizens United during the confirmation could help further unite them behind the GOP.

“There’s no question in my mind that conservatives across the country understand the court is used to overrule majority opinion,” Cornyn said, adding that such a move would be a “windfall” for Republicans in November.

Curt Levey, the executive director of the conservative Committee for Justice, agreed that along with questions about the individual mandate provisions of the health care bill, the Citizens United decision will be one of the top issues facing the Obama administration and its nominee. “That and the constitutionality of the individual mandate are two of the hottest topics that the nominee will be asked about,” Levey said.

A Senate GOP aide said he expects the court case to play a key part in how the party handles both its messaging work and the questions the nominee will face.

“I don’t think it’s any secret” that Minority Leader Mitch McConnell (Ky.) and other top Republicans have a keen interest in the case and will push the nominee on whether he or she agrees with the constitutional controls on government regulation underlying the Citizens United decision, the aide said.

A second GOP aide said that Democrats have tried to make the case that the decision is an attack on common Americans and represents “activism” by the court’s conservative majority.

“They’re trying to set up the idea on the Democratic side in advance of the hearings … that the 5-to-4 majority in Citizens United represent judicial activism, and they’re going to balance that with a moderate,” the aide said.

Judiciary ranking member Jeff Sessions (Ala.), McConnell and other Republicans are now “figuring out a way to disable that talking point, which we view as grossly inaccurate,” the aide said.

Republicans complain that Democrats’ view of the judiciary — and Citizens United in particular — is based on a “results-oriented” philosophy, rather than a constitutionally based one, a distinction they believe will resonate with the public.

As part of that effort, Republicans beginning this week will look to use some of Obama’s previous lower court picks — particularly the nomination of Goodwin Liu to the U.S. Court of Appeals for the 9th Circuit — as adhering to a liberal, “outcomes-based” philosophy rather than a constitutionalist approach. Liu could become a poster boy for this effort thanks to the proximity of his nomination — the Judiciary Committee is holding a hearing on it Friday — and the fact that in his speeches and writings Liu has made some provocative statements.

Liu represents a “perfect example of the kind of thinking we don’t want on the court,” one GOP aide said.

Jessica Brady contributed to this report.

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