U.S. Supreme Court Campaign Finance Case

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ASU Law Professor Paul Bender reviews a campaign finance case that the U.S. Supreme Court is scheduled to hear earlier in the day.

Ted Simons: Join us tomorrow on "Horizon" for more of the president's speech and a healthcare reform debate, with Dr. Eric Novak, Chairman of Arizonans for Healthcare Freedom, and Roger Hughes, executive director of St. Luke's health initiative. Tomorrow at 7:00 on "Horizon." In 2002, Congress approved the McCain-Feingold campaign finance law including restrictions on corporate spending for candidate-specific campaign - but does the law apply to feature length movies? The Federal Election Commission says it does and when the conservative non-profit advocacy group citizens united prepared to release "Hillary: The Movie," during the 2008 election season. The FEC held the form to the same standards as a political attack ad and citizens united challenged and the case was argued before the U.S. Supreme Court last March and today it was argued again. And here with more is ASU law professor, Paul Bender. Good to have you back on the program.

Paul Bender: Good to be here, Ted.
Ted Simons: Let's get down to basics here. What exactly is going on?
Paul Bender: That's a nice question. And it's very interesting. And it's very unusual. As you said in the opening, this is really a case about whether "Hillary: The Movie" is covered by this statute which prohibits corporations and labor unions from airing on electioneering television ads opposing a candidate within 30 days before a primary or election. And the first time the case was issued before the Supreme Court, does that apply to "Hillary: The Movie"? Is it an election ad? It's not a 30-second, it's an hour, I think, or an hour and a half. It's an infomercial or documentary. That was the main issue that was presented to the court in the first argument. The court decided not to decide the case but instead to ask for re-argument and ask the parties to argue an issue that nobody thought was involved in the case and it's enormously broad and important. And that is whether corporations have exactly the same free speech rights as real people. And that's what the argument today was all about. Except during the argument today, the people who I think were opposed to the court broadening issues kept asking, isn't there a narrower way to decide the case? Of course, there is. We're used to thinking through -- the conservative members of the Supreme Court are the ones who keep saying this. The court is passive, it's not active. It waits for people to bring disputes to it and decides them on the narrowest possible grounds. This is exactly the opposite. People brought a narrow question of whether this movie comes within the statute and they've reached out and said why are you restricting corporations in a way you don't people? And that's what the argument was about today.

Ted Simons: Those looking for some change, some kind of overhaul, no matter how big, basically saying the film is no different than a journalistic exercise that goes past the 30, 60-day minimum. At what point does what you see on cable or radio talk shows supersede campaign attack ads? It seems to me as if you talk about the film becoming a campaign attack ad, what else is included in regards to free speech?

Paul Bender: The question is, Where do you draw the line between clear campaign ads, vote for Joe, don't vote for Joe, and campaign ads maybe merged into a longer thing? The court majority, five people on the court seemed to be disinclined to address that issue and what they want to address is whether laws that have been in place in the United States for 100 years, which prohibit corporations from contributing to political candidates and more recently from on their own issuing election ads where those are constitutional. You can't do that to individuals. You have a right to contribute to political campaigns and make statements in favor or against the candidate the day before the election. The American law has prohibited corporations and labor unions from doing that for about a hundred years and the court today is considering whether that ought to be held to be unconstitutional. Just imagine if general motors, Exxon Mobil could use billions of dollars they have before elections to campaign for candidates of their choice. That would revolutionize American politics and that's what is at stake in the case that was being argued today.

Ted Simons: And yet there are those who say overturning the laws and offering an opportunity like you just displayed there, to give us an example of, that would provide more speech, more debate, more dialogue in an election. Is the court going to go that far to take a look at that and say, well, it opens up more free speech? It's a huge corporation with all of those billions of dollars, the more the better?

Paul Bender: I think there is a very good chance five members of the court will do that, because -- especially listening to today's argument. There was an audio release of today's argument. It seemed there were five people on the court seriously considering doing that. Despite the pleas of the attorneys on the other side and their own colleagues on the court to say, hey -- and this is really important -- the question of whether you should be able to stop Exxon Mobil from doing that is completely different from the question you ought to be able to stop citizens united, which is a single issue, political corporation. Doesn't have a lot of money, doesn't create a danger to the political system but if Exxon Mobil could do that, it could create a danger. So do you want to decide in the context of a case that's not about big corporate money that corporations have a first amendment right to spend all the money they have on election campaigns. Don't do that, said the people who I think are going to end up dissenting and the people who are trying to say don't do that-- let a corporation try to do that and then build a record around that. Namely, what are the dangers. Government would have to prove what the dangers are. It's remarkable for the court to reach out and decide this enormous abstract issue in a case that doesn't raise it.

Ted Simons: How are those who are going for the abstract part of the issue explaining that a corporation is the same as an individual when a corporation doesn't die and a corporation isn't held liable if -- in terms of money issues and these things. I mean there's a difference, it would seem, and yet, in terms of free speech, treat it like an individual.

Paul Bender: What they say is, who cares where the speech comes from? The speech is valuable. It doesn't matter whether it comes from a corporation, whether it comes from a computer, whatever. There are ideas in there and why are you afraid to let people hear these ideas? The whole purpose of the first amendment is to let people sift through the ideas. To me that's unrealistic in an election campaign. It's one thing to say that about public issues, but 30 days before an election, 60 days before an election, when you flood money into the market, enormous amounts of money, you buy up all the television time, that's not people sitting back and listening to the arguments and making up their minds. That's the kind of thing we've been used to where money tends to win a lot of elections and that's the danger. It's a close question. I think the first amendment was designed to give people the right to speak. If you give corporations the right to speak, you're really giving people the right to speak twice in a multiplied way. Because the managers of the corporation who on their own can make their own contributions get to take the profits the corporation made through selling cars or something like that and then speak again with those profits on behalf of something that doesn't exist, that isn't real. Namely the corporation. So to me, the underlying philosophical problem is, are corporations really entitled to the same rights of free speech as individuals? The court today -- nobody in the court seemed inclined to get into that.

Ted Simons: I was going to say, what do you see happening here? It sounds like it's leaning toward maybe overturning something. Do we know what and how much?

Paul Bender: We don't know what and that's the big mystery. It's possible that the court will say in the broadest possible way, corporations have the same speech rights as individuals. That's possible. That may be the most likely thing that will happen. The question when they go back to chambers and think about it, they'll say that's a big step to take and let's not do that. Let's say this film should have been permitted to be shown and leave for another day whether the same thing would apply to a film which was produced by and was marketed by an enormous corporation with enormous amounts of money. And the question to me is whether the two people, recent appointees on the court, Alito and Roberts, who when they were confirmed said they would never reach out for issues that weren't in the case, whether they'll stick by that. It's funny, Justice Sotomayor made a speech from the bench saying we ought do this narrowly. She said that in confirmation and she continues to say that, and those two, who were very strong in the confirmation about not reaching out for issues, today seemed to have no hesitancy about deciding the broadest possible issues even though not raised in the case.

Ted Simons: Give us a timetable. When can we expect this?

Paul Bender: They heard the case a month early. Nobody knows why. There's no emergency. Because there's no -- these things only apply to federal elections. There's no federal election this year. The next one is in 2010. It's not clear why they did it so early. I suspect they'll not hand it down before the term opens, which is the first Monday in October. But they'll probably hand it down sometime in the fall. I would suspect before the end of the calendar year.

Ted Simons: Interesting stuff. Thanks for joining us.

Paul Bender: ASU Law Professor;

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