As U.S. Supreme Court justices weigh whether to loosen spending restrictions on corporations, trade associations and unions in federal elections, one man is considered key to deciding the landmark campaign finance case:

Chief Justice John Roberts.

It was Roberts who, during last week's re-hearing of Citizens United v. FEC, remarked tersely that "we don't put our First Amendment rights in the hands of FEC bureaucrats."

That remark, and other developments during the rare re-rehearing of a case the justices had reviewed earlier this year, have some in the campaign finance reform community worried the high court may invalidate electioneering restrictions that forbid corporations, trade associations and unions from paying for hard-hitting issue advertisements just before a federal election.

"All eyes are on Roberts," Tara Malloy, a Campaign Legal Center lawyer, told Roll Call after the 90-minute hearing. "We all knew Chief Justice Roberts was skeptical of these laws, and it came across in oral arguments."

The case involves the group Citizens United, which produced a 90-minute documentary critical of then-Sen. Hillary Rodham Clinton titled "Hillary: The Movie." After the group was barred from airing the film on pay-per-view television during the 2008 presidential primary, it brought suit challenging key components of the Bipartisan Campaign Reform Act of 2002, otherwise known as McCain-Feingold. After hearing initial arguments on the details of the movie this past June, the high court called for extended oral arguments on the case, thus signaling an interest in reviewing broader free-speech questions. Arguments were heard Sept. 9.

Two key issues are under intense scrutiny.

The first is the constitutionality of restrictions on corporate expenditures for electioneering communications -- targeted television and radio messages that refer to federal candidates in the weeks before an election, as decided in McConnell v. FEC in 2003.

The second and more provocative is a 1990 ruling in Austin v. Michigan State Chamber of Commerce, which found that banning corporate expenditures on express advocacy campaigns that encourage voting for or against a federal candidate does not violate First Amendment free-speech protections.  

At another point in last week's oral arguments, newly installed U.S. Solicitor General Elena Kagan responded to a hypothetical question about banning books containing electoral advocacy that might be paid for by corporations. She told the justices that the FEC, which administers federal campaign finance laws, does not view its proper role as policing books and has never taken an enforcement action against a book.

Some observers say the FEC has, in fact, investigated matters involving books related to campaigns. Those included a multi-million-dollar book tour by financier George Soros during 2004 campaign to promote a Soros-authored book highly critical of former President Bush. The FEC never took action against Soros. But Kagan's assurances apparently failed to appease Roberts, whose questions were often skeptical.

"We don't put our First Amendment rights in the hands of FEC bureaucrats," Roberts shot back at one point during Kagan's presentation.

Kagan conceded during the hearing that the Federal Election Commission had "no objection" to expanding an exemption for some nonprofit corporations to the general ban on corporate campaign spending.

During recent comments at a Public Affairs council event, former FEC Chairman Michael Toner outlined four possible outcomes in the case.

The first two aren't likely to affect corporations, trade associations or unions very much:

• The justices could rule to uphold McCain-Feingold on statutory grounds and state that this type of pay-per-view television is not included in the mediums covered by McCain-Feingold.
• The court could also find that this type of communication does not meet the criteria for election-related communication.

Two broader rulings are also possible, Toner said, and they would have greater implications:

• The court could strike down all restrictions on electioneering communications during the blackout period before a primary or general election. Under this scenario - which Toner predicts will happen -- corporations, trade associations and unions would be allowed to pay for issue advertisements just before an election.
• The court could find that any impediment on corporate expenditures for either electioneering or express advocacy communications is unconstitutional. Under this scenario, corporations, trade associations and unions could fund advertisements in the days and weeks just before an election that also encourage the support or defeat of particular candidates. Toner believes this ruling is unlikely.

"I'd place good odds there will be major changes coming down this fall in time for the 2010 mid-term (elections), and definitely before the 2012 presidential election," said Toner, a partner at Bryan Cave who, with other former FEC commissioners, has filed a friend-of-the-court brief in the case.

Court watchers predict a 5-4 ruling in the case, split along ideological lines.

A transcript of the Supreme Court argument is online at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-205[Reargued].pdf