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A few firsts at Supreme Court's campaign finance hearing

TOP OF THE TICKET

Elena Kagan makes her first argument as solicitor general. Sonia Sotomayor asks her first question as a justice.

September 13, 2009|Johanna Neuman

The case involved Hillary Rodham Clinton (the movie), the future of campaign finance reform and the sanctity of the 1st Amendment guarantee of free speech. Just the usual fodder for a Supreme Court tasked with being the last appeal for all causes, from all corners.

There were a few firsts at the hearing Wednesday.

Elena Kagan made her first argument at the high court as solicitor general, presenting the government's case that "Hillary: The Movie" was a campaign ad and therefore subject to regulation by campaign finance laws.

She was facing off against a former solicitor general, Theodore B. Olson, who was arguing that those laws violate the 1st Amendment rights of corporations and unions by banning them from political speech.

"Why is it easier to dance naked, burn a flag or wear a T-shirt profanely opposing the draft," Olson said in July at the conservative Federalist Society, "than it is to advocate the election or defeat of a president? That cannot be right."

The case is so pivotal -- and so potentially tumultuous to decades of campaign finance law -- that the justices returned from their summer recess three weeks early to hear arguments.

And the case could be decided by two justices appointed by President George W. Bush, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., who may have to choose between personal views and court precedents.

But no matter all of that.

Sonia Sotomayor, the first Latina justice and President Obama's first high court appointment, spoke her first words from the bench. And the world took note.

By all accounts, she jumped right into questioning. She appeared skeptical of arguments by Citizens United that the conservative group's 90-minute campaign-era movie about Clinton ("Not a musical comedy," observed Justice Stephen G. Breyer) was protected speech. And she questioned Olson about why he had abandoned a former argument -- that Citizens United was not really a corporation -- for a more sweeping one, that campaign funding restrictions discriminate against corporations.

Upbraided by several Republican senators during her confirmation hearings about the importance of respecting court precedents, she asked Olson why he seemed so intent on toppling it in this case. Her first words:

"Mr. Olson, are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case? I know that we asked for further briefing on this particular issue of overturning two of our court's precedents. But are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?"

His answer: No.

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'Aisle caucus' tradition lives on

There are the perennials at any presidential address to Congress: the lawmakers who manage to get an aisle seat and virtually throw themselves into the arms of any president who arrives to deliver a speech.

Last week was no exception.

Democratic Reps. Sheila Jackson-Lee of Texas (last seen at pop icon Michael Jackson's memorial service offering a congressional resolution that never actually materialized) and Eliot L. Engel of New York (who has been arriving early for State of the Union addresses since the beginning of President George H.W. Bush's term) led the fierce competition for an aisle seat to shake President Obama's hand before his speech on healthcare Wednesday.

"They want face time with the president, whoever he is," observed Rutgers University's Ross Baker. "They are willing to spend half a day or more basically squatting on the aisle just to shake a president's hand or kiss him."

Oddly, they come from safe districts, so it's not like they need the face time with a POTUS to win reelection.

And they seem equally smitten whether the president is a Democrat or a Republican.

But for members of what Baker calls "the aisle caucus," the magic seems to be nothing more glorious than rubbing shoulders with political celebrities.

This year, said one congressional source who arrived in the House chamber for preparations, the first arrivals seem to have been Michigan Democratic Rep. Carolyn Cheeks Kilpatrick, followed by Engel, who was there at 8:30 a.m. to mark his seat. The speech wouldn't start until 8 p.m.

In a change from past years, said CNN, some Democrats even put markers on seats on the Republican side of the aisle. And this year too, some Republicans, including Reps. Tim Murphy of Pennsylvania and Cliff Stearns of Florida, came early to reserve seats.

Maybe we should call it the presidential junkie caucus.

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Neuman writes for The Times.

Top of the Ticket, The Times' blog on national politics ( www.latimes.com/ticket "> www.latimes.com/ticket ), is a blend of commentary, analysis and news. These are selections from the last week.

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