Campaign Finance Law and Sotomayor

By Clarice Feldman

People will certainly be speculating on the impact of the Ricci opinion on the Sotomayor nomination . (I just drafted one such article for Pajamas media.) But the court has now handed the Senate Judiciary panel another reason to closely question Sotomayer and remind the voters why this is an important nomination:

June 29 (UPI) -- The U.S. Supreme Court said Monday it wants a case involving federal election law and an attack "documentary" on Hillary Clinton reheard next September.

The justices said new argument should address two key Supreme Court precedents upholding federal election law and whether the high court should "overrule either or both."

At stake in the case is a provision of a 2002 federal campaign law that bans "election communications" funded by corporations or unions close to an election.

Lower courts blocked Citizens United from showing the film during the primaries because they held it looked like a campaign ad, a ruling that to my mind put the McCain-Feingold "campaign finance reform Act" in direct collision with the First Amendment and justified the fears of those who believed the Court should not have deemed the law's restrictions on campaign financing to be constitutional..

If Sotomayor is confirmed before the rehearing, will it affect the determination on whether the Court's earlier opinions on that law are entitled to stand or must be revised to conform to the constitution?

Update:

In March, the WSJ Law blog predicted this case would bring down the campaign finance law:

Much of the intrigue arrived courtesy of Malcolm Stewart, the lawyer for the government. According to the NYT's take, Stewart largely argued that Congress has the sweeping power to ban political books, signs and videos, so long as they're paid for by corporations and disseminated not long before an election.

Stewart argued there was no difference in principle between the 90-minute documentary and a 30-second television advertisement, a position which Justice Kennedy seemed to find hard to stomach.

"If we think that the application of this to a 90-minute film is unconstitutional," Justice Kennedy said, "then the whole statute should fall under your view because there's no distinction between the two?"

It didn't sit well with other justices, either. According to the NYT's Adam Liptak: "by the end of an exceptionally lively argument at the Supreme Court on Tuesday, it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court's 2003 decision upholding the McCain-Feingold campaign finance law . . . ."

Part of the problem facing the law seems to lie within the current makeup of the court. Justice Alito replaced Justice Sandra Day O'Connor, an author of the 5-to-4 decision upholding the McCain-Feingold law in 2003. Justice Alito appears to be more skeptical of campaign finance regulation than Justice O'Connor was.

The Court could take a somewhat narrow approach to the case. But, according to Liptak, Stewart's answers on Tuesday seemed to invite the court toward a broader ruling.

Justice Scalia admitted to feeling a little "disoriented." "We are dealing with a constitutional provision, are we not, the one that I remember which said Congress shall make no law abridging the freedom of the press?" he asked.