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'Hillary' case: the legal stakes

Three Supreme Court justices have already announced their willingness to overturn a pair of key precedents.

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That 1990 decision and its antidistortion rationale were reaffirmed in 2003, when the high court upheld similar corporate-spending restrictions in the Bipartisan Campaign Reform Act.

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Now, the court is reexamining those decisions.

Three justices – Antonin Scalia, Anthony Kennedy, and Clarence Thomas – have already announced their willingness to overturn them. The big question is whether Chief Justice John Roberts and Justice Samuel Alito are willing to join the three to form a five-vote majority.

On Wednesday, all the justices will hear arguments from both sides.

US Solicitor General Elena Kagan and reform advocates are playing down the "level playing field" aspect of the Michigan case and instead are emphasizing the potential corruptive influence of corporate money in elections.

Huge independent spending by corporations holds the potential for corruption, says Tara Malloy of the Campaign Legal Center in Washington. "Total corporate profits in 2005 were $1 trillion," she says. "One could see that if a fraction of that was spent in a congressional race, that will overwhelm the race."

Ms. Malloy adds, "Even if corporate expenditures are independent, the vast treasuries available to corporations means that in a common-sense way, candidates probably will be appreciative and maybe even indebted to the corporations who spent on their behalf."

The suggestion that Citizens United was attempting to gain corrupt influence is misguided, says Theodore Olson, lawyer for the group. "The public can ... rest assured that 'Hillary' represents nothing more than one conservative ideological group's independently expressed views on Senator Clinton's political background and policy positions," he writes in his brief.

"[The high court's 1990] anti-distortion rationale – and its fundamental premise that to protect the marketplace of ideas the government must suppress political speech – is antithetical to the First Amendment," Mr. Olson writes.

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For more about the free-speech issues in this case, click here.

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