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Hillary: The Oral Argument

By Eva Rodriguez

For court geeks like me, it doesn't get much better than this: a weighty case of national importance, a couple of historic firsts and a star-studded cast of lawyers.

All of these elements come together on Wednesday, when the Supreme Court takes up the case of "Hillary: The Movie" -- formally known as Citizens United v. Federal Election Commission. This is a tough case -- pitting the First Amendment rights of corporate citizens to "speak" through contributions against a long-standing public policy aimed at limiting the potential of Big Business to affect -- or, less generously, to manipulate -- elections through enormous donations. The court -- if it acts expansively -- may well overturn a century's worth of prohibitions. I'm hoping it doesn't and opts for a more modest approach that recognizes legitimate First Amendment concerns while keeping in place long-standing court precedents that blessed some restrictions.

The theater surrounding the substance is irresistible. The case marks two firsts: the debut of Justice Sonia Sotomayor -- the first Hispanic confirmed to the court -- and the first argument by Solicitor General Elena Kagan -- the first woman confirmed to that post. Although it's novice appearances for both, don't expect them to hold back. Some court watchers are predicting that Sotomayor -- known as an aggressive questioner in her previous incarnation as a judge on the U.S. Court of Appeals for the 2nd Circuit -- comes out of the gate with the first question. (My money is on Justice John Paul Stevens, the senior "liberal" on the bench who may be retiring after this term. We'll see.) Kagan, the former Harvard Law School dean who has never appeared before the Supreme Court or any court of appeals as an advocate, is said to have performed impressively in a number of moot courts in preparation for the Hillary case. The conservative justices -- particularly Chief Justice John G. Roberts Jr. and Justice Antonin Scalia -- are likely to be very active in pressing Kagan on her defense of campaign finance regulations.

Rounding out the dramatis personae -- in addition to the other sitting justices -- are: Ted Olson, the former Bush solicitor general who successfully argued Bush v. Gore; legendary First Amendment lawyer Floyd Abrams; and former Clinton solicitor general Seth Waxman, who brilliantly argued the landmark Boumediene case that gave Guantanamo detainees the right to challenge their detentions in federal court. Olson is representing Citizens United, which produced "Hillary: The Movie;" Abrams is arguing on behalf of Senate Minority Leader Mitch McConnell, who joins Citizens United in opposing restrictions. Kagan is going to bat for the FEC; Waxman has been tapped to represent the interests of John McCain, the former GOP presidential nominee and a principal sponsor of the McCain-Feingold campaing finance reform law.

The court has allotted 80 minutes for argument. Olson and Kagan get 30 minutes each, with Abrams and Waxman each scheduled for 10. But don't be surprised if the arguments run over. Roberts -- unlike his predecessor and mentor Chief Justice William Rehnquist, a stickler for deadlines -- has been known to let advocates exceed time limits in cases where the justices seem not to have exhausted all of their questions. Here's hoping this is exactly what happens.

By Eva Rodriguez  | September 8, 2009; 6:50 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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I only wish I could share the author's enthusiasm on this topic. I fear that Will Rogers got it right when he opined "We have the best government money can buy". Somehow I don't think anyone is laughing about that right now.

Posted by: averal | September 8, 2009 10:23 PM | Report abuse

Elections are of the people, by the people, for the people. Corporations are not people, they are entities, and their primary interest is cash flow... not human rights. Corporate citizenship is a form of self-regulation for social good will... it does not confer voting rights or electioneering rights or even lobbying rights on social issues like an election.
Corporations maximize share value and officers' holdings... while minimizing the expenses of product quality, employee compensation and consumer satisfaction. They have no real good will, or social conscience; their existence is purely proprietary and "profitary".

Posted by: RaDaRR | September 9, 2009 2:15 AM | Report abuse

"corporate citizens"???

No, no, no. Stop that. That phrase is an oxymoron. There is no such thing as a "corporate citizen." This is how the MSM gets hoodwinked over and over again by clever PR people and spinmeisters.

What does a "corporate citizen" look like? Sound like?

Look it up -- a "corporation" is a person-less body that is allowed to get away with murder in America. The concept was set up in the 19th century to help owners and managers of businesses to avoid direct responsibility for their actions.

No such thing as "corporate citizen" -- this is really one for the Post ombudsman. This absurd phrase should always have quotation marks and some skepticism attached to it.

Posted by: tony_in_Durham_NC | September 9, 2009 9:40 AM | Report abuse

Campaign contributions are the least of the problems we face with elections. How about the sweetheart status between GE, MSN, and Barrack Obama? Not even addressed by any of these laws. Crooks will be crooks.

Posted by: jack29 | September 9, 2009 2:05 PM | Report abuse

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