The Supreme Court, especially Chief Justice John Roberts, is at a crossroads.

The immediate issue is whether to demolish Congress’s overly broad, 62-year-old ban on corporate spending in federal elections or, instead, carve out a sensible exception.

The broader question is whether Roberts and Justice Samuel Alito will aggravate the Court’s polarization and give plausibility to charges of conservative judicial activism by providing the fourth and fifth votes for demolition of the ban, and of two important precedents as well.

I fear that the two Bush appointees may be poised to do just that. In their comments during the September 9 oral argument in the big campaign finance case, Citizens United v. Federal Election Commission, they seemed to be pushing for an unnecessarily sweeping decision that would enhance the political power of big business corporations (and would almost certainly be extended to unions as well).

Roberts and Alito would thereby be passing up a golden opportunity for principled compromise held out by liberal Justice John Paul Stevens. He credited a National Rifle Association amicus brief, by conservative lawyer Charles Cooper, with suggesting (as its second-favorite outcome) what Stevens called "the wisest narrow solution of the problem before us." That would be excising with a scalpel, not a meat ax, the one serious First Amendment defect in the campaign finance rules now before the Court.

In an unusual, relatively unpublicized June 29 order, the Supreme Court scheduled a special oral argument for September 9 to consider using a pending case to sweep away the 62-year-old ban on independent corporate spending to influence elections.

That would be the Court’s biggest attack ever on campaign finance laws. It would also be a big mistake. There is no good reason to empower Big Business CEOs to influence elections by spending other people’s money — by which I mean money belonging to ideologically eclectic shareholders, most of whom do not want it invested in election campaigns.

But for all the alarums among liberal election-law experts, I doubt that the Court’s majority is planning to open the floodgates to unlimited campaign spending by Big Business.

I am guessing, and hoping, that the justices will instead use the pending case, Citizens United v. Federal Election Commission, to draw a principled, pragmatic, nonideological line between business corporations and nonprofit advocacy corporations.

Such a decision would uphold the First Amendment rights of citizen groups to spend their individual members’ dues and contributions to support or oppose federal candidates, as long as they don’t serve as conduits for money amassed in the economic marketplace by business corporations.

While many conservatives are all too eager to unleash Big Business to spend on campaigns, most liberals have been all too content to censor nonprofit advocacy corporations. They have also ignored the blatantly self-interested and illegitimate nature of Congress’s decision to draft the campaign finance restrictions so broadly as to hog-tie such advocacy groups, as described below.

Eight Supreme Court justices spent an hour on April 25 arguing with three lawyers and one another about the constitutionality of the federal regulation governing political advertising by nonprofit advocacy corporations. But all nine justices and all three lawyers missed what, I respectfully submit, should be the point of the case. They should be focusing on how Congress rigged the McCain-Feingold campaign finance law to protect its own members from criticism by their constituents.

In a nutshell, the problem with the Court’s approach to the 2002 law’s ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election — or both. Seeking to determine which purpose predominates — the focus of the current debate — is a mug’s game.

McCain-Feingold’s ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders’ and members’ money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else’s money on electioneering ads.

The Supreme Court was probably right to uphold the two most publicized provisions of the Bipartisan Campaign Reform Act of 2002. The first bans large, potentially corrupting gifts of soft money to the major political parties at the behest of members of Congress and other federal officials. The second bans any use of business corporation or labor union money to buy broadcast ads naming federal candidates close to the time of a federal election.