Analysis

Because a government lawyer pushed his argument as far as logic would carry it, an alarmed Supreme Court on Tuesday seemed poised to create a new exception to federal power to regulate what advocacy groups can say during national political campaigns.  At a minimum, a 90-minute documentary, even though a bitingly critical attack on a specific candidate, leaving little doubt of what it wanted voters to do, may wind up with constitutional protection, it appeared after the Court had heard Citizens United v. Federal Election Commission (08-205). But, if that is the outcome, federal regulation of other forms of campaign expression may be put in doubt anew.

When the argument turned to such First Amendment horrors as banning books, banning Internet expression, and banning even Amazon’s book-downloading technology, “Kindle,” the members of the Court seemed instantly to recoil from  the sweep of arguments made by Deputy Solicitor General Malcolm L. Stewart.

Even Justice David H. Souter, who tends to support government regulation of campaign spending, looked and sounded stunned when Stewart argued that the government would have power to forbid a labor union to use its own funds to pay an author to write a campaign biography that would later be published in book form by Random House. And, across the bench, incredulity showed when Stewart said the government could ban an advocacy group from using its own funds to pay for a 90-minute documentary if only the first minute was devoted to urging voters whom to choose, and the rest was a recital of information about the candidate without further direct advocacy.

Still, the outcome of the Citizens United case might be less sweeping than attorney Theodore B. Olson had wanted as he defended that group’s political documentary aimed at Sen. Hillary Rodham Clinton during the last presidential campaign.  There appeared to be no sentiment for removing all federal controls on spending by corporations and labor unions at election time, and little visible support for striking down altogether a key section of the 2002 campaign finance law dealing with corporation and union political communications.

Justice Antonin Scalia outlined, at one point, an approach that might well attract a majority vote: the First Amendment provides “heightened” protection when a campaign message involves an exchange between someone wanting to speak and someone willing to listen — as, for example, Citizens United’s “Hillary” film when offered as video-on-demand on cable television.  (Scalia, of course, is known for wanting the government altogether out of the business of regulating campaign speech, but, on this occasion, he appeared to be summing up what looked very much like prevailing sentiment.)

Justice Anthony M. Kennedy provided the one strong hint that, if the advocacy group Citizens United does win this time,  that could spell trouble for all of the 2002 law’s Section 203, on regulating “election communications” by corporations and labor unions in spending their own funds.

After Stewart had argued that the law makes no distinction between a punchy, 30-second or 1-minute “attack ad” and a 90-minute documentary that amounts to an attack “informercial,” Kennedy commented: “So if we think that this film is protected, and you say there’s no difference between the film and the ad, then the whole statute must declared unconstitutional.”  Stewart did not disagree, though he tried to recover partly by saying it would be “rare” for the government to find a film that was so “unrelenting” in its attack on a candidate that the FEC would seek to regulate or even prohibit it.  “We have that here,” Stewart said of the “Hillary” movie.

Justice Samuel A. Alito, Jr., who has been teetering on the edge of becoming a strong opponent of campaign spending regulation, raised only a few questions but, in doing so, found Stewart to be pressing his constitutional argument of Congress’s powers to an unusual length.  “That’s pretty incredible,” Alito remarked, after Stewart had said that the Constitution would allow the government to ban or limit the distribution of the “Hillary” movie not only via video-on-demand on cable, but also on the Internet, on a DVD, at a public library, or in a book.

The government lawyer’s argument relied heavily upon the Supreme Court’s 2003 decision in McConnell v . FEC, upholding Section 203 as written (though not as applied to a given fact pattern).  The Citizens United case concerns that section as applied to the specific film at issue.

Chief Justice John G. Roberts, Jr., the author of the Court’s most recent ruling on Section 203 and its scope, did not seem impressed as Stewart kept citing that ruling as allowing government regulation of campaign messages that are no different from direct promotion or opposition to a candidate.  And Roberts definitely did not embrace Stewart’s clear implication that the Court in the McConnell case had settled the constitutionality of regulating campaign “informercials.” Neither the Court in McConnell, nor Congress in enacting Section 203, even considered the question of regulating campan documentaries, Roberts said.

The Court’s more pro-regulation Justices, in pressing Olson hard during his time at the podium, seemed put off by the “Hillary” movie’s contents.  Justice Stephen G. Breyer commented dryly that “I saw this film, and it is not a musical comedy.”  Justice Ruth Bader Ginsburg said that, “if this isn’t an appeal to how to vote [something that federal law makes eligible for regulation], I don’t understand what is.”  And Justice John Paul Stevens hinted that he thought the Citizens United case was an easy one for the Court to uphold regulation.  Still, they, along with Justice Breyer, have tended to favor such regulation, anyway.

The hearing was overwhelmingly dominated by discussion of Section 203′s validity, as it applied to expression like the “Hillary” movie.  The Court, and the lawyers, spent little time examining the validity of other provisions of campaign finance law being attacked by Citizens United — the disclosure, reporting and “disclaimer” clauses that have been applied to its film documentary.

Although Olson’s brief challenged the constitutionality of those provisions, too, he did not bring them up at all.  Stewart discussed them briefly, but only after the Chief Justice mentioned them as the government lawyer was finishing his argument.

Olson sought to muster as much emotion as he could on the constitutional question, opening with this thrust: “Participation in the political process is the First Amendment’s most fundamental guarantee.  Yet that freedom is being smothered by one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state.”  Stewart, in an understated argument, did not try to match that level of rhetoric.

The Court is expected to decide the case sometime in late spring or early summer.

Posted in Citizens United v. FEC, Analysis