MELISSA BLOCK, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
The Supreme Court returned early today to hear a second round of arguments in a case that could transform American politics. The big question is whether the Supreme Court, with its conservative majority, will reverse decades of its own decisions on campaign finance. It could decide to allow corporations to spend freely on political candidates.
NPR legal affairs correspondent Nina Totenberg was at today's arguments.
NINA TOTENBERG: The case involves a scorching, 90-minute movie critique of Hillary Clinton, produced by a conservative group that wanted to air it on cable TV during the 2008 presidential primary season.
(Soundbite of "Hillary: The Movie")
Unidentified Man #1: She's no Richard Nixon, she's worse.
Unidentified Man #2: Vindictive.
Unidentified Woman: Venal, sneaky.
Unidentified Man #3: Intolerant.
Unidentified Man #4: Scares the hell out of me.
TOTENBERG: The Federal Election Commission and a lower court ruled that the movie amounted to a long-form ad that, under federal law, is banned from broadcast just before elections if it's paid for with any corporate funds. Initially, the case was appealed to the Supreme Court on a relatively minor point. After hearing arguments in March, though, the justices ordered a second round of arguments, this time focused on whether Congress may, as it has for over 100 years, ban corporations from using general treasury funds in candidate elections.
In a tacit acknowledgement of the importance of the case, the justices allowed the release of the audio from today's proceedings. Leading off the argument was former Solicitor General Ted Olson. He quickly faced a skeptical Justice Ruth Bader Ginsburg, who asked whether corporate rights are different from individual rights.
Justice RUTH BADER GINSBURG (Supreme Court): A corporation, after all, is not endowed by its creator with inalienable rights.
Mr. TED OLSON (Attorney): What the court has said in the First Amendment context is that corporations are persons entitled to protection under the First Amendment. Now, that is…
Justice GINSBURG: Would that include - today's mega-corporations, where many of the investors may be foreign individuals or entities?
Mr. OLSON: The court in the past has made no distinction.
TOTENBERG: Justice Antonin Scalia followed up.
Justice ANTONIN SCALIA (Supreme Court): Do you think Congress could prevent foreign individuals from funding speech in United States elections?
Mr. OLSON: The - the…
Justice SCALIA: Private individuals, foreigners.
Mr. OLSON: That's, of course, a different question. I haven't studied it, Justice Scalia…
Justice SCALIA: Well, it's not different. I asked it because I thought it was related.
TOTENBERG: Justice Ginsburg noted that corporations are free to spend money on candidate elections through political action committees that collect individual contributions for campaigns. Olson replied: That just makes corporations into ventriloquists. He argued that Congress must have a compelling reason to limit corporate speech, to which Justice Stephen Breyer replied…
Justice STEPHEN BREYER (Supreme Court): The obvious argument is look, they said the compelling interest is that people think that representatives are being bought.
TOTENBERG: Breyer got Olson to concede that if corporations win the right to spend unlimited and undisclosed amounts in campaigns, they will be able to spend far more than political parties are allowed to under federal law. In short, said Breyer, the court will have made a hash of the McCain-Feingold Campaign Reform Law passed in 2002 and upheld by the Supreme Court a year later. New Justice Sonia Sotomayor focused her questions on congressional versus court power, noting that Congress and the states have, over the past century, sought to achieve a balance between allowing free speech and curbing the potential for corruption in campaign spending.
Justice SONIA SOTOMAYOR (Supreme Court): Would we be cutting off that future democratic process? Wouldn't we be doing some more harm than good by broad ruling in a case that doesn't involve for-business corporations?
TOTENBERG: Also making her Supreme Court debut today was new Solicitor General Elena Kagan.
Ms. ELENA KAGAN (Solicitor General): For over a hundred years, Congress has made a judgment that corporations must be subject to special rules when they participate in elections. And this court has never questioned that judgment. Number two…
Justice SCALIA: Wait, wait, wait, wait, wait. We never questioned it, but we never approved it, either.
Ms. KAGAN: I'll repeat what I said, Justice Scalia. For a hundred years, this court, faced with many opportunities to do so, left standing the legislation that is at issue in this case. First the contribution limits, then the expenditure limits that came in by way of Taft-Hartley.
TOTENBERG: Kagan seemed unruffled, even if she acknowledged the odds seemed to be against her in this exchange with Chief Justice John Roberts.
Ms. KAGAN: If you're asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose…
(Soundbite of laughter)
Ms. KAGAN: …the answer is -
Chief Justice JOHN ROBERTS (Supreme Court): What - what case of ours - what case of ours suggests that there is a hierarchy of bases on which we should rule against a party when both of them involve constitutional questions?
TOTENBERG: The court's most conservative members seemed to give her pause for pessimism. Justice Anthony Kennedy said Congress is seeking to silence corporate expertise. Justice Samuel Alito observed that half the states allow corporate spending in candidate elections and have not been overwhelmed by corporate corruption. And Justice Scalia contended Congress wrote the law to benefit its own incumbents, an assertion staunchly rebutted by Kagan. Prodded by Chief Justice Roberts, Kagan said repeatedly that Congress justifiably barred corporate spending on candidate elections because it is other people's money, the shareholders' money that's being spent. Roberts had a ready reply.
Chief Justice ROBERTS: The idea - and as I understand, the rationale - is we, the government, big brother, has to protect shareholders from themselves. They might give money, they might buy shares in a corporation, and they don't know that the corporation is taking out radio ads.
Ms. KAGAN: In a world in which most people own stock through mutual funds, in a world in which most people own stock through retirement plans, in which they have to invest, they have no choice, I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know.
TOTENBERG: Finally, Justice Ginsburg asked Kagan whether the government sticks to the position it argued in March: that Congress could, though it never has, ban campaign books financed by corporations. The government said Kagan has changed its position. It does not think books can be banned. In this exchange with Chief Justice Roberts, she noted that books are not covered by the McCain-Feingold Law, and the Federal Election Commission has never banned a book.
Ms. KAGAN: The FEC has never applied 441-B in that context. So for 60 years, a book has never been at issue from…
Chief Justice ROBERTS: We don't put our first - we don't put our First Amendment rights in the hands of FEC bureaucrats.
TOTENBERG: A decision in the case is expected later in the court term.
Nina Totenberg, NPR News, Washington.