RENEE MONTAGNE, Host:
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: At the center of the case is a slashing, 90-minute critique of Hillary Clinton, produced by Citizens United, a conservative group that wanted to buy time to air the film on cable TV during the 2008 presidential primary season. The movie's message was not subtle.
(SOUNDBITE OF MOVIE "HILLARY CLINTON: THE MOVIE")
U: She's no Richard Nixon, she's worse...
U: ...scares the hell out of me.
TOTENBERG: When the Federal Election Commission ruled the movie and its ads could not air on cable TV right before a presidential primary, producer David Bossie went to court.
MONTAGNE: People should be able to articulate ideas and visions of candidates without any repercussions.
TOTENBERG: Senators McCain and Feingold say there's nothing in the law that inherently prevents David Bossie from airing his movie on TV. Scott Nelson represents the senators.
MONTAGNE: There's no prohibition on running any kind of political advertising. It's just a question of how it's funded.
TOTENBERG: Lawyer Ted Olson, who argued in support of McCain-Feingold when he was the Bush administration's solicitor general, is today arguing against the law.
MONTAGNE: The most important right that we have in a democracy is the right to participate in the electoral process. And we've smothered that right with the most incomprehensible, burdensome, unintelligible set of regulations and laws, some of which are criminal laws, surrounding that freedom. That's intolerable.
TOTENBERG: Olson maintains that corporations are individuals, in a constitutional sense, and should be able to express their views. Money, he says, is speech.
MONTAGNE: You can't speak without money. And in this day and age, you need resources to reach people. And that's part of the right to speak. There's nothing more important, under the First Amendment, than to talk about elections.
MONTAGNE: The question always is: So, who does the First Amendment apply to?
TOTENBERG: Trevor Potter is former chairman of the Federal Election Commission and a longtime adviser to Senator McCain.
MONTAGNE: Does it apply to foreign nationals? Does it apply to the government of China or Russia or Iran in this country? Does it apply to corporations? Those are all different players who are not individuals, they're not voters, they're not citizens.
TOTENBERG: Campaign reform advocates say that if the court strikes down limits on corporate campaign spending, the whole electoral system will be distorted. Corporations, with billions of dollars in profits each year, will be able to swamp the system using front groups so that voters won't know who's sponsoring the ads they see. Campaign reform advocate Fred Wertheimer.
MONTAGNE: It's a disaster for democracy. It puts corporate money in the driver's seat. It will unleash amounts of money in campaigns that we have never seen before.
TOTENBERG: The Supreme Court is closely divided on this issue. At the March argument, five justices, including Chief Justice John Roberts, appeared hostile to the existing law. For the court, though, the larger question is whether conservatives - and Roberts in particular - are prepared to reverse decades of election-law decisions.
C: I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even-handedness. It is not enough that you may think the prior decision was wrongly decided.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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MONTAGNE: This is NPR News.
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