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Supreme Court Hears Campaign Finance Case

STEVE INSKEEP, host:

And we're going to hear responses from the public and members of Congress throughout the rest of this morning's program. Now, some of the same lawmakers who watched the president also took time for another show yesterday. Across the street from the U.S. capital, the nine justices of the Supreme Court heard arguments. The case drew lawmaker's interest because it could transform American politics.

NPR legal affairs correspondent Nina Totenberg was listening.

NINA TOTENBERG: At issue in the case is whether the century-old ban on corporate spending in candidate election violates the constitution and whether the court should reverse decades of its own decisions that explicitly or implicitly have upheld the ban on corporate and union spending.

Yesterday, there appeared to be five conservative justices on the verge of saying the ban is unconstitutional. If so, that would dramatically change campaign finance law as practiced since 1907 when Congress, for all practical purposes, first outlawed corporate spending in candidate elections.

Leading the challenge to the ban yesterday was former Solicitor General Ted Olson. He faced immediate questions from Justice Ruth Bader Ginsburg, who asked whether corporations have this same constitutional protections as individuals. After all, she observed, corporations are not endowed by their creator with inalienable rights. Ted Olson.

Mr. TED OLSON (Former Solicitor General): What the court has said in the first amendment context is that corporations are persons entitled to protection under the First Amendment. Now it…

Justice RUTH BADER GINSBERG (U.S. Supreme Court): Does that - 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 Ginsberg noted that corporations are free to spend money on elections by setting up political action committees that collect individual contributions, voluntarily given, for campaign spending. Lawyer Olson called that ventriloquist speak.

New Justice Sonia Sotomayor seemed to search for a way to rule narrowly and to defer to Congress. Congress and the state, she noted, have worked for more than a century to achieve a balance between free speech and the need to prevent corporate and union campaign spending from corrupting government decision making.

Justice SONIA SOTOMAYOR (U.S. Supreme Court Judge): Wouldn't we be doing some -more harm than good by broad ruling…

TOTENBERG: Also making her Supreme Court debut was new Solicitor General Elena Kagan, who told the justices that for over 100 years, the Supreme Court has never questioned the ban on corporate spending. Justice Antonin Scalia: The court may never have questioned the ban, but it's never approved it, either.

Justice ANTONIN SCALIA (U.S. Supreme Court): …think that Congress has a self-interest. I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so.

Ms. ELENA KAGAN (Solicitor General): I think Justice Scalia is wrong. In fact, corporate and union money go overwhelming to incumbents. This may be the single-most self-denying thing that Congress has ever done.

TOTENBERG: Prodded by Chief Justice John Roberts, Kagan said repeatedly that Congress was justified in banning corporate spending in candidate elections because corporate money is other people's money. It is the shareholders' money, and they have no say in how it's being spent in campaigns.

Roberts didn't seem to buy that argument.

Justice JOHN ROBERTS (U.S. Supreme Court Chief): 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: A decision in the case is expected before the end of the year.

Nina Totenberg, NPR News, Washington.

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INSKEEP: You're listening to MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.