Supreme Court Holds Unusual Session On A Movie
GUY RAZ, host:
Welcome back to ALL THINGS CONSIDERED from NPR News. I'm Guy Raz.
The Supreme Court doesn't officially start its fall session until next month. But on Wednesday, the court holds a special session under very unusual circumstances, a session to rehear arguments in a case from last term.
There's a lot at stake in the case; in short, the future of campaign finance law.
Joining me to sort out the details of the case is NPR legal correspondent Nina Totenberg. Hi, Nina.
NINA TOTENBERG: Hi.
RAZ: First of all, what's so unusual about the Supreme Court scheduling this mini-session now?
TOTENBERG: Well, it's unusual but not unheard of. The last time we had one of these early arguments was six years ago, when the court considered the constitutionality of the McCain-Feingold campaign finance law. And because these cases are about elections, and financing of elections start well before the elections, the court likes to get them done quickly.
RAZ: And the justices are rehearing oral arguments in a case from last term that centers around a movie called "Hillary: The Movie." What's the main issue here?
TOTENBERG: The central issue is: Can Congress constitutionally prevent corporations from using shareholder money, and unions from using membership dues, to finance independent ads for and against candidates on radio and TV 30 days before an election?
"Hillary: The Movie" is a 90-minute documentary that basically savages Hillary Clinton as unfit for office in the words of one court decision. It was produced by a conservative group using some corporate money. And because of the way it was financed, and because the group didn't disclose its donors, the Federal Election Commission, backed by a federal court, said the movie could not air on cable TV right before the 2008 presidential primaries.
RAZ: So could it have aired if it was financed differently?
TOTENBERG: Yes. If they hadn't accepted any corporate contributions or if they used their Political Action Committee, a PAC, which has contributions from individuals, and those contributions are limited and disclosed.
But what's particularly interesting is that this case was not initially appealed to the Supreme Court as a grand challenge to the existing law. It was a pretty minor case brought on a technical point.
In June, though, the justices ordered a second round of arguments. And that transformed the case into sort of a do-or-die challenge to about a century of legal understandings on the power of Congress to regulate campaign money to prevent corruption of the system.
RAZ: Nina, let's talk a little bit about some of the personalities involved here. First to Elena Kagan. She's the new solicitor general. Obviously, she'll be arguing the government's case. Tell us a little bit about her.
TOTENBERG: Well, Elena Kagan actually was one of the contenders for the Supreme Court seat.
TOTENBERG: She was the dean of the Harvard Law School; a very, very successful dean. She served in the Clinton administration. She was actually nominated for a federal judgeship, but Republicans just never took up the nomination.
She's an impressive person, but she has never argued a case in any court, and this is one of the most arcane areas of the law. I can't imagine anything more difficult than having this case as your debut not just in a court but the Supreme Court.
RAZ: And some heavy hitters here. I mean, she's going to be facing one of her predecessors, Ted Olson who was solicitor general under President George W. Bush. He's going to be arguing on behalf of Citizens United, this conservative group that made the film.
TOTENBERG: That's right. And interestingly he, when he was in the Bush administration, argued in defense of this law. He won the decision in 2003.
RAZ: Finally, Nina, before we let you go, there were some rumblings this week about the future of Justice John Paul Stevens, whether he will retire or not. What's your intel there?
TOTENBERG: Well, you know, trying to figure out what the justices are doing personally is a bit of Kremlinology. What he did was he hired only one clerk. He's entitled to three or four. And in the past, that's been sort of a sign that a justice is going to retire because you're entitled to one in retirement.
He's going to be 90 years old in April. He still plays very vigorous tennis, and he's obviously an incredibly engaged member of the court. I would say he's the greatest strategic justice on the court currently.
But it would make sense that after 34 years, he might want to step down and that he might want to do it when a fellow Chicagoan is the president of the United States, and he's a gentleman. He wouldn't want to hire law clerks, then leave them in the lurch. But I think all this shows is that he's thinking about it.
RAZ: That's NPR's senior legal correspondent Nina Totenberg, giving us a preview of the Supreme Court's upcoming session.
Nina, thank you so much.
TOTENBERG: You're welcome.