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Will the Real Conservatives Please Stand Up?

Chief Justice John G. Roberts Jr. may be the darling of the right, but newly minted Democratic appointee Justice Sonia Sotomayor displayed more conservative bona fides during the highly unusual oral arguments Wednesday over the constitutionality of certain campaign finance laws.

The chief justice and Justices Antonin Scalia, Anthony Kennedy and Samuel A. Alito Jr., openly expressed skepticism and at times hostility to legal provisions that bar corporations -- large or small, for-profit and nonprofit alike -- from spending unlimited amounts of money to help elect or defeat a candidate for federal office. The arguments arose after the Federal Election Commission (FEC) restricted distribution of "Hillary: The Movie," a critical documentary of then-presidential candidate Hillary Clinton produced by conservative nonprofit Citizens United and scheduled for viewing on-demand during the campaign season. Citizens United challenged campaign finance provisions as unconstitutional under the First Amendment.

Roberts put his objections most succinctly during an exchange with Solicitor General Elena Kagan, who defended the FEC: "We don't trust our First Amendment rights to FEC bureaucrats." Yet the court would have to fully or partially overrule two previous cases which upheld the restrictions in order to rule in favor of Citizens United. Most conservative jurists say they are loathe to take such actions, especially if a narrower, less abrupt approach could lead to the necessary course correction. Conservatives also tend to shy away from upsetting legislative prerogatives unless they clearly and egregiously cross a constitutional line that cannot be remedied except by rejecting the legislation in question.

Enter Sotomayor, in her first appearance on the court. Senate Republicans worried prodigiously about whether Sotomayor would respect existing court precedents or ditch them to pursue case results consistent with her personal preferences. Yet it was Sotomayor on Wednesday, joined by consistently liberal Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer, who harped on the importance of maintaining legal continuity and refraining from discarding well-established court precedent. Sotomayor mused about the importance of respecting the political process, which had produced the bipartisan McCain-Feingold campaign finance reform act that contained the restrictions. And she mused out loud about whether a move to overturn existing case law wouldn't do "more harm than good" by undermining the democratic process and Congress's ability and right to legitimately regulate in the campaign finance arena.

It's unclear whether Roberts and the other conservatives will vote to completely invalidate the campaign restrictions or compromise on a more subtle approach. Earlier in the term, a conservative majority seemed poised to throw out a key provision in the Voting Rights Act of 1965 only to pull back to render a more modest, compromise decision. In a way, the Citizens United case may not be the best vehicle to truly test Sotomayor's appreciation for stare decisis; after all, left-leaning thinkers tend to look favorably on government regulation in such areas as campaign finance. The true test will come when she's confronted with precedents that don't support her favored political result.

By Eva Rodriguez  | September 9, 2009; 6:35 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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The democrats have been conservative since President Carter.

Posted by: WilliamBlake | September 9, 2009 7:04 PM | Report abuse

The RATS (Roberts, Alito, Thomas, Scalia) and Kennedy will reach a compromise, striking down restrictions on contributions from corporations, but keeping them in place for unions, environmental groups, and the like.

Posted by: jimk8mr | September 9, 2009 10:27 PM | Report abuse

Welcome to judicial activism, Republican style. What a chilling oral argument. Justice Scalia and Chief Justice Roberts really claim not to see the difference between individual citizens and corporations. And Scalia's disingenuous drumming on the fact that most corporations (the corner beauty salon, etc.) are not rich enough to do real harm to the democratic system. Really, are Americans now dumb enough to buy that? If there are, say, 100 huge multinationals able to drown out the American voters with their ad buys, it doesn't matter if they are 1% or 5% of all corporations.

Posted by: Rethinking | September 10, 2009 1:18 AM | Report abuse

This will be one of the most important decisions made by this court. It should receive front page coverage, and cameras should be providing us with front row center seats to the drama.

Voting taxpayers should want to increase controls on campaign funding, not reduce them.

The foundation of the American Democratic Process is at stake.

Posted by: JamesRaider | September 10, 2009 1:09 PM | Report abuse

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