Citizens United v. Federal Election Commission

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Reargued September 9, 2009. Decided January 21, 2010.

Authorship: Lyle Denniston of SCOTUSblog

Docket: 08-205

Issue: Whether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers. After hearing argument, the Court ordered re-argument, to focus on the constitutionality of limiting corporations’ independent spending during campaigns for the Presidency and Congress.

Contents

Briefs and Documents

Decision

REVERSED in a 5-4 decision with an opinion written by Justice Kennedy. Justice Stevens dissented, joined by Justices Ginsburg, Breyer, and Sotomayor. (January 21, 2010)

Oral Argument

Transcript (September 9, 2009)

Audio recording

Supplemental Merits Briefs

Supplemental Amicus Briefs

Neither party

Appellant

Appellee

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Post-Decision Analysis

A Few Open, or Not So Open, Questions After the Ruling

Lyle Denniston originally wrote the following for SCOTUSblog.

After more than a year of study and writing, the Supreme Court on Thursday produced a ruling that may make the hundreds of millions spent in past presidential and congressional elections look like a pittance. By removing existing restraints on what and when profit-making and non-profit corporations may say during federal election campaigns, the Court has significantly raised the financial stakes for all such elections, beginning with the primaries this year — the first of which occurs in 12 days, in Illinois. But the Court did not directly settle everything with its release of 176 pages of opinions at 10:01 a.m. Thursday.

Some of the questions that linger are truly open questions after the ruling, some may have been partly settled, and some may actually have been settled, if only by implication. Justice Anthony M. Kennedy’s controlling, 57-page opinion sweeps broadly, but it does not reach every issue that the highly complex mechanism of federal campaign finance regulation has raised.

Perhaps the most important question that one might ask in the wake of Citizens United v. Federal Election Commission is: are labor unions as free as corporations to spend as much as they wish — independently of candidates — to influence elections to Congress and the White House? The likely answer is: Probably, but check back later.

The parts of the federal law that the Court struck down, barring corporations from using their own in-house cash to spend on politics, are written to apply equally to labor unions. And there are sections of the Kennedy opinion that seem to treat corporations and labor unions interchangeably. For example, the most important single conclusion the Court draws is that the identity of the political speaker (spending money on politics is, to the Court, speaking) cannot be the basis for restrictions on their independent political spending. Thus, it would seem, the same limitation that was nullified today for corporations may be gone for unions, too.

But that was not an explicit issue in the case, and the Kennedy opinion never says explicitly that the curbs are lifted for unions. Even so, that is an issue that may well be settled, but only by applying the rules of logic, rather than anything conclusive that the Court said.

Another question, and this one the Court explicitly said it was not deciding, was whether foreign corporations with operations in the U.S. — placed under the same restrictions as domestic ones — might now be able to claim the same First Amendment protection if they want to spend large sums to try to influence U.S. federal elections. Perhaps that is one example of the next generation of campaign finance lawsuits.

The Court also did not rule on the flat ban — in effect for corporations since 1907, and for labor unions since 1947 — on donations that they might want to make directly to a federal candidate or a candidate’s campaign organization. That was not an issue in the Citizens United case, and it was discussed only briefly in the Kennedy opinion. With the Court speaking with such fervor about the need for open and robust political spending, one might wonder whether a donation to a candidate is all that different, constitutionally, from paying for an independent ad that says vote for that candidate or vote against the opponent. Does anyone in political finance have a yen to bring that challenge? That is not clear.

And that last question gives rise to an even broader one: might this Court be willing, sooner rather than later, to cast aside the clear distinction it has drawn since 1976, declaring that political spending gets more constitutional protection than political donating? In terms of message to the voters, does writing a check for an advertising campaign to help out a candidate speak any more loudly than writing a check to the candidate directly? Or differently? Justice Kennedy nowhere even alludes to this distinction, and whether it might now be drawn into question under the sweeping freedom-to-spend rhetoric of this opinion.

There is another broad question that largely goes unaddressed in this ruling, but it perhaps should be asked anew in the wake of this decision. It involves a project that the Court, the Federal Election Commission, and politicians and their lawyers have been dealing with for years — defining the difference between a political message (in an ad, for example) that involves “express advocacy” and one that involves “issue advocacy.” The former might well be an ad that says explicitly “vote for” or “vote against” Candidate X. The latter might well be an ad that says write to Senator X (a pro-choice lawmaker) and tell her you are a pro-life voter. The Court has said repeatedly that Congress has more power to curb the former than the latter.

But Thursday’s decision, using a broad free-speech rationale, struck down an explicit ban on use of corporations’ in-house funds to pay for an ad that would say “vote for” or “vote against” Candidate X (a ban that applied only during election season, fairly close to a primary or general election day). One question is whether there is anyone in politics to whom that “express versus issue” distinction still applies? That is a truly open question.

Given that there is always someone in American politics interested in testing any limit that any part of the government imposed on political expression, one can easily imagine that Citizens United is not the last word on questions it did not resolve.

Opinion Analysis: The Personhood of Corporations

Lyle Denniston originally wrote the following for SCOTUSblog.

Supreme Court Justice John Paul Stevens may have had his tongue in his cheek, or perhaps wanted merely to taunt the majority, when he wrote in Thursday’s opinion on the role of corporations in national politics: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” It is a tantalizing notion.

Suppose that General Motors Corp., troubled that a candidate for Congress from Michigan was too favorable to the United Auto Workers, decided to do everything in its corporate power to defeat that candidate. So, aside from spending huge sums of its own money (none of it federal bailout money) to influence the outcome, it went to the office of the voting registrar in downtown Detroit. It sought to sign up, affirming that it was a citizen and resident of Michigan. Denied registration, it sued, claiming that, under the Fourteenth Amendment of the U.S. Constitution, it was a “person,” and, as a “citizen,” it was entitled to equal protection under the election laws. Would the Supreme Court buy that?

General Motors might already be halfway to winning its lawsuit. It has been understood, for decades, that corporations are “persons” under the Constitution. And nothing the Supreme Court said Thursday undermined that notion. If anything, the decision in Citizens United v. Federal Election Commission conferred new dignity on corporate “persons,” treating them — under the First Amendment free-speech clause — as the equal of human beings.

At least in politics, the Court majority indicated, corporations have a voice, and they have worthy political ideas. Here is the way Justice Anthony M. Kennedy put it (partially quoting from an earlier ruling): “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.”

It does not matter that the right-to-vote scenario is quite implausible. The fact is that the decades-old image of American corporations as a destabilizing and perhaps even corrupting influence in politics has now been thoroughly re-examined by the Supreme Court, and the corporate “person” emerges from the process with — in the eyes of the majority — a burnished image of good citizen. There is a deep chasm of perception, between Thursday’s majority and the dissenters, about the nature of the corporate personality.

Justice Stevens, writing for the dissenters, turned Chief Justice John Marshall’s celebrated comment in the Dartmouth College case — in a ruling that actually favored the corporate form — into a belittling comment: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.”

In vivid contrast, the majority overruled a 19-year-old precedent (Austin v. Michigan Chamber of Commerce) that had lambasted the corporation, when it entered the political arena, because of ”the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s suport for the corporation’s political ideas.” That, the Court had said in 1990, was a form of corruption that legislators could use as the basis for singling out corporations for restrictions on their political activity. The overruling may have been intended, in part, to scuttle that image.

The rehabilitation of the corporate “person” almost certainly was a project that five of the Justices were prepared to embrace. It could be argued, indeed, that the Court put the case over to the current Term for a second argument, focused on corporation’s rights under the Constitution, as part of that project. There was not a hint that those five, in the end, were in any way moved by the suggestion at that second argument by Justice Sonia Sotomayor that the Court may have been wrong for a century about awarding “personhood” to corporations.

The majority put aside the dissenting opinion’s repeated mentions of the special favors that the corporate form gets, treating those as a completely inadequate foundation for treating corporations differently as political citizens. And Justice Antonin Scalia, in a separate opinion buttressing the majority ruling, went to considerable lengths to enhance the constitutional pedigree of corporations’ rights and to denounce the dissenters’ suggestion that the Founders did not think highly of corporations.

The question now arises whether the enhanced legal stature of corporations will make a difference in other fields of constitutional law. One might suggest that corporations have already benefitted from greater sympathy from the current Court — for example, in constitutional limitations on the size of punitive damages that juries may assess for corporate wrongdoing. And, this Term, there seems to be quite a realistic prospect that the Court, applying the Due Process Clause, may limit the scope of the federal criminal fraud laws when an executive of a corporation is accused of depriving the shareholders of “honest services.”

Going further, one might speculate whether it would be worth starting a lawsuit to test some of the restraints that states impose on corporations as conditions in their charters, in an effort to further liberate the corporate form. Or, perhaps, one might anticipate a lawsuit if, as is already being suggested in some quarters, that Congress might respond to the Citizens United ruling by passing a law to require corporations operating in interstate commerce to be federally chartered, and decreeing that, as such, they are not “persons” with constitutional rights.

It is not too much to expect that lawyers for corporate America may well be looking to explore the outer possibilities of their clients’ “personhood” and new-found constitutional equality.

A New Law to Offset Citizens United?

Lyle Denniston originally wrote the following for SCOTUSblog.

President Obama ordered his aides on Thursday “to get to work immediately with Congress” to develop “a forceful response” to the Supreme Court’s ruling in the Citizens United v. Federal Election Commission case. In a statement, the President denounced the decision, saying it “has given a green light to a new stampede of special interest money in our politics.” It was obvious, therefore, that he was interested in working with Congress to overturn the decision, or at least to narrow it significantly.

Unless he has in mind an amendment to the Constitution, however, it is most unclear at this point whether the lawmakers could do anything — or much of anything — to cut down on “special interest money” in American politics. This was a constitutional decision, laying down (essentially for the first time), a sweeping free-speech right in politics for “special interest” bodies of all types with the concept of “speech” clearly embracing spending money to influence election outcomes. If individuals have considerable freedom to express themselves politically, corporations, labor unions, and other “special interest” entities now do, too.

While the First Amendment’s guarantees of freedom are far from absolute, any time a legislative or other government body attempts to curtail those freedoms, the effort starts with a decidedly negative outlook. Such restrictions come with the heaviest burden of proof of necessity that any governmental act must put forth in order to win judicial approval. And, on Thursday, the Court simply made that burden a good deal heavier in the realm of curbs on political speech, in the form of spending money on campaigns, or otherwise.

Given the degree to which many Republicans in Congress had wished longingly for a First Amendment decision precisely like the one that emerged in Citizens United, it is by no means a certainty than the GOP leaders would enlist in what the President’s statement suggested should be a “bipartisan” effort. In fact, the Senate GOP leader, Mitch McConnell of Kentucky, has been a consistent foe of federal restrictions on corporate spending in national politics, and was one of the leaders six years ago of the effort to get the Court to strike down an array of federal campaign finance restrictions.

Moreover, given the election result Tuesday in the Massachusetts race for a Senate seat, there is reason to doubt that the White House will be able to carry off a significant effort to get a “forceful response” to Citizens United, especially when the real-world effect of that decision in federal campaigns is likely to be greater spending in favor of GOP candidates, since corporations have deeper pockets than, say, labor unions.

As White House legislative analysts think of potential responses to the ruling, it is conceivable that they will not even try to put new restaints on “special interest” spending, because of the constitutional barrier that now stands to stymie that approach. So long as “special interest” groups spend their political dollars on campaign efforts independent of candidates or party organizations, the Citizens United barrier to restrictions will be in place. There thus are fewer options for a legislative counter-measure.

The White House and Congress perhaps could approach the new money situation indirectly, by trying to put more distance between corporate, union or other “special interest” spending and the intended beneficiaries of that spending: favored candidates. One approach would be to increase the transparency of “special interest” spending by more rigorous disclosure legislation, in hopes of exposing more vividly who is in fact benefiting and, perhaps, by embarrassing the beneficiaries. (This is the one kind of legislative approach that the Supreme Court upheld on Thursday.)

Congress conceivably could attack the perceived problem of money-in-politics by another indirect means, by tightening restrictions on dealings between lobbyists and elected officials, including legislators. Lobbying, too, has First Amendment protection, but it is an activity that can be regulated at least at the level of disclosure. A drastic approach might be to expand the concept of questionable vote-buying, by requiring a more detailed public accounting of how lawmakers vote in relation to lobbyists with whom they deal directly and in relation to the industries who may benefit from legislative favors that flow out of the lobbyists’ efforts. One perhaps frivolous suggestion already making the rounds of political conversation is to require legislators to wear NASCAR-style uniforms, emblazoned with the logos of their corporate “sponsors.”

Tightening of lobbying restrictions, however, has been shown to be exceedingly difficult to get through Congress, precisely because there is no such thing as a “bipartisan” consensus on the need for such new measures.

Another indirect option (mentioned by a reader of the blog) would be to move toward public financing of congressional elections and enhancing such financing arrangements for the presidential candidates. That, it is suggested, may move toward reducing the influence of big-money donors, including major corporations.

Oral Argument Recap

It is not at all clear, despite the Court’s reaching out to address ultimate questions about the nature of corporate involvement in politics and the constitutional implications of that, that the case actually will be decided upon such a broad plateau. If the Court has trouble assembling a majority for a monumental shift in campaign finance law, it might well fall back on a narrowly focused opinion that insulates the Hillary movie, and groups like Citizens United. There are some institutional concerns that might suggest restraint — the way this particular case developed on the issues, the long sweep of history that, however imperfectly, has supported fears of corporate wealth, the abiding view that the Court does not decide broad constitutional issues if it does not have to do so.

But, assume that it is ready to grasp the task of scuttling Austin, and with it the now-disputed section of McConnell, Citizens United might well start with three votes for overruling. Justices Kennedy, Scalia and Thomas have left no doubts of their sentiments about the basic flaws they have seen in both precedents. Citizens Untied also has reason to be optimistic — but perhaps less so — about Chief Justice John G. Roberts, Jr., who has already established a clear record of skepticism about federal campaign finance restrictions. Justice Samuel A. Alito, Jr., has exhibited more moderate strains of that same skepticism, and has even suggested he would consider overruling campaign finance precedents if a clear test were at hand.

The FEC, on its side, probably can anticipate support from Justices Brayer, Ginsburg and Stevens, but at this stage can have no reliable sense of whether Justice Sonia Sotomayor would be the supporter of campaign finance regulation that her predecessor, retired Justice David H. Souter, so clearly was. And, for them, the reach for a fifth vote would seem to be a longer one.

Assuming that Sotomayor does side with the Stevens bloc, that group definitely needs to rely heavily upon arguments for judicial modesty or ”minimalism,” arguments that might stir some hesitation in Justice Kennedy, or perhaps even in the Chief Justice or Justice Alito.

If the ultimate constitutional issues are not reached in this case, there is at least a chance that they would come up again, perhaps in a case raised by a major business corporation, wealthy and with much at stake in the political realm but feeling frustrated by Austin and McConnell. Or a trade group representing such giant firms. Does Big Business care as much about this as, say, a non-profit, advocacy organization like Citizens United does? The answer, perhaps, is not obvious.

Preview of Re-Argument

Looking back on the Gilded Age, historians Samuel Eliot Morison and Henry Steele Commager wrote: “The nation was fabulously rich but its wealth was gravitating rapidly into the hands of a small portion of the population, and the power of wealth threatened to undermine the political integrity of the Republic.” Justice Felix Frankfurter quoted that remark in a 1957 decision, and recalled that in the late 19th Century, there had been a “popular feeling that aggregated capital unduly influenced politics, an influence not stopping short of corruption.”

For generations, that image of the Gilded Age has shadowed the American business corporation, with popular rhetoric routinely treating corporate money, when used in politics, as corrupt and corrupting. Now, more than a century later, the Supreme Court is confronting the question — as much a cultural as a constitutional inquiry – of whether that perception is out of date. It is pondering whether corporations ought to enjoy full constitutional equality in the financing of modern campaigns for the Presidency and for Congress. It is doing so in a case that started out a lot more modestly than that, the case of Citizens United v. Federal Election Commission.

Background

Historians and legal scholars disagree on what led Congress, in 1907, to pass the Tillman Act, the first federal campaign finance law, banning American corporations from donating money directly to candidates in federal elections. Some say it was done as a matter of political reform, to curb the growing power of corporations in politics — that is, the capacity of Big Business to “buy” influence, a reality demonstrated back then by what was known as the New York Life Insurance scandals over secret corporate donations to Theodore Roosevelt’s campaign in 1904.

Others say Congress stepped in to stop corporations from using other people’s money — their owners’ money — to “buy” legislation that would ease the owners’ control of corporations, part of an effort by business managers to separate ownership and control.

No matter what the motivation, enactment of the Tillman Act sent Congress off on a decades-long, seldom-interrupted effort to insulate federal politics from corporate wealth, even when the money was spent on political activity independently of candidates’ organizations. The states, who started their own such effort in the 1890s, have kept it up, too.

Along the way, of course, there has been fundamental disagreement on whether the various curbs on corporate political activity, often reinforced, have been effective, or whether corporations have easily found ways to evade the restrictions. That disagreement still looms in the background of the Citizens United case.

There are two other layers of disagreement in that background. One is over whether it makes constitutional sense to treat the spending of money as “speech,” and the spending of money on election campaigns as “political speech.” But that is a disagreement outside the Court; it is clear that the Court regards such spending to be speech that has at least some protection under the First Amendment. The Citizens United case may determine how much.

And the other layer of disagreement is whether corporations are entitled to some of the same protection, under the Constitution, as real people: in other words, should they be treated as “persons” who actually have constitutional rights? Once again, that appears not to be open to doubt within the Court. The origins of the notion that corporations are “persons” with constitutional rights are somewhat obscure (often traced, perhaps erroneously, to an 1886 Supreme Court decision, in Santa Clara County v. Union Pacific Railroad), but the Court does not question that they are persons in a legal sense. The coming decision in Citizens United will accept that as a premise for whatever rights corporations are found to have as political financiers.

The large stakes of this case were not really apparent when the Court first agreed to hear it last Nov. 14 — ten days after Americans had cast their ballots in the most recent federal elections. At that time, Citizens United, a politically active group with strong conservative views, pressed the case primarily as a test of whether federal campaign finance restrictions applied to what it called “a broadcast feature-length documentary movie.” There was some constitutional argument involved, but the case was primarily statutory in scope. At the center of the case was Citizens United’s sharply critical portrayal of the presidential candidacy last year of Hillary Rodham Clinton. The feature-length film was titled “Hillary: The Movie.” The contents of that film have been all but obscured by the profound shift in the shape of the case that has since occurred.

After the Court heard oral argument on the case last March 24, and began debating in private how to decide it, some members of the Court — the public does not know who, or exactly why — apparently began viewing the case as a more fundamental inquiry into constitutional questions about corporations’ rights of political speech. On the final day of the Term, the Court ordered the case reargued, and set the date for Sept. 9. Lawyers were told to come back to debate whether the Court should overrule two of its most important precedents that had upheld curbs on campaign finance by corporations.

What was behind the move, almost certainly, was a continuing debate within the Court about whether it had been wrong — specifically, in 1990 and 2003 — in upholding tight controls on corporate money in politics. That debate, though directly involving federal legislation in the Citizens United case, has covered similar state restrictions, too. The outcome of Citizens United, of course, could affect both levels. (Although this is not at the center of the rehearing, the outcome also could affect similar curbs on campaign spending by labor unions. Since 1947, they, too, have been barred from using their own funds to try to influence federal elections.)

What apparently is not at stake (unless the Court ultimately speaks very broadly in favor of corporate “political speech”) are laws that bar corporations from donating their money directly to candidates — the type of ban in effect for more than a century. The restriction now in dispute — lesser, but still resented by many corporations and their defenders – forbid them from using corporate money to advocate, independently of any candidate organization, the election or defeat of a candidate. That is what is called “independent spending” on campaigns. The Supreme Court has upheld that kind of ban — at least when applied to corporations. Two of the Court’s most important precedents that did so must now withstand fresh scrutiny.

In 1990, in the case of Austin v. Michigan Chamber of Commerce, the Court upheld a Michigan law that barred corporations from using their internal funds to support or oppose any state candidate, even though the spending was done independently of that candidate’s campaign operation. Only three Justices then on the Court remain on the bench now — Justices John Paul Stevens, Antonin Scalia and Anthony Kennedy. Stevens’ concurring opinion took a narrow view of the dispute, but found the Michigan law valid. Scalia and Kennedy each wrote energetically in dissent, with Scalia opening his opinion sarcastically: ” ‘ Attention all citizens. To ensure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate —-’ “ Corporations, he said, were the first victims of “this Orwellian announcement.”

In 2003, in the case of McConnell, et al., v. Federal Election Commission, et al., the Court upheld a provision of a 2002 campaign finance law that banned corporations – profit and non-profit — from spending their own treasury funds to pay for radio and TV ads in the weeks before federal elections, if the ads contain the name of an actual candidate for President or Congress. Six Justices then on the Court remain: Justice Stevens, one of the authors of the majority ruling in McConnell, and Justices Stephen G. Breyer and Ruth Bader Ginsburg, who were part of that majority, and Justices Kennedy, Scalia and Clarence Thomas, dissenting on the radio and TV ads provision (the so-called “electioneering communications” provision).

In ordering a new argument in Citizens United in the 2008-09 Term, the Court said it wanted new briefs on whether the Court, “for the proper disposition of this case,” should overrule “either or both” Austin and the part of McConnell upholding, as written, the law dealing with electioneering radio and TV ads.

Supplemental Briefs on the Reargued Question

The two sides filed their new briefs simultaneously, on July 24. Though quite short, as merits briefs go, they go to the heart of why government could or would impose restrictions on the political activity of corporations, independent of candidates but clearly influencing elections. On what theory, the two sides debate, can the government impose such limits? And, how does that theory square with the fact that corporations do have — to some degree, at least — a constitutionally protected voice to speak on political questions?

Citizens United spends little of its challenge on the McConnell decision, focusing primarily upon the Austin ruling, which it clearly regards as the more fundamental precedent. If Austin is overturned, it argued, that may well scuttle McConnell, too. Without Austin, it argued, the McConnell decision would be “supported by nothing.”

“Austin was wrong when it was decided, and this Court’s subsequent decisions have further undermined its First Amendment analysis,” Citizens United contended. It would not be enough now, it went on, to find that the current ban on corporate political spending does not apply to the documentary about Hillary Clinton. The brief made clear that Citizens United does not merely want victory for itself, and for that film; it wants a new constitutional manifesto. The existing framework for regulating corporations’ political speech, the brief argued, is simply unworkable, because it is rooted in the reasoning that produced the Austin decision.

The flaw in Austin, the brief asserted, was its rationale that the “immense aggregations of wealth” gathered by business in the corporate form have a “corrosive and distorting” effect on politics. What that has led to, the brief then said, is that some speakers’ political speech must be suppressed to diminish its impact on campaigns. The government, it argued, has no compelling interest in equalizing voices in political discourse, the Constitution does not give corporations fewer rights than individuals, and shareholders do not need the protection against using corporation funds to pay for political messages because “corporate democracy” affords sufficient protection. To the suggestion that the Court should respect its Austin precedent under the theory of stare decisis, Citizens United argued that members of the Court have repeatedly engaged in criticism of that precedent and urged its overruling, thus diminishing anyone’s real reliance on that precedent.

The FEC’s new brief is essentially a combination of two main elements: an argument that the Citizens United case is not a proper one for reexamining Austin or McConnell, and a practical political argument that overruling those cases would turn loose “vast sums” of corporate spending on politics with “pernicious consequences,” increasing the risk of outright corruption, or at least its apparent existence, making politicians beholden to corporations (and labor unions).

In outlining what it called “idiosyncratic features” of this particular case that make it “particularly unsuitable” to raise large constitutional questions, the Solicitor General’s brief contended that the real issue involves political action by major for-profit corporations, not non-profit advocacy corporations like Citizens United. The Court, it argued, should await a constitutional case brought by a for-profit corporation, or at least by a non-profit corporation that depends heavily upon money from for-profit firms. Essentially, the government appeared to be suggesting a legal pass for the Hillary movie, and for Citizens United.

The government also asserted that Citizens United had largely abandoned its constitutional argument in this case, and did not press much of a constitutional argument when it took part in the McConnell case six years ago.

Moving on, though, to the continuing validity of Austin and McConnell, the Solicitor General mounted a strong defense of both, should the Court reach the question. Cautioning the Court that it was being asked to overturn “decades of federal legislation,” to engage in a “direct affront” to Congress which has focused closely and repeatedly on the woes of corporate political influence, and to open corporate treasuries to engage in “actual corruption” of politicians, the brief argued that the Austin precedent should not be treated as if it were an aberration.

Pervading that part of the Solicitor General’s discussion is a simple distrust of major business corporations, especially those that are profit-oriented, when they enter the political arena. “The nature of business corporations,” the brief said, “makes corporate political activity inherently more likely than individual advocacy to cause quid pro quo corruption or the appearance of such corporation.” It warned of “pay to play” schemes in which corporations are “better suited than individuals to afford the ante.” A single company need not even have allies, it can simply pony up the money it needs to get its way, the brief suggested. And, it added, the special benefits that come from the corporate form should not be allowed to hold sway in politics, too . Each side got an opportunity to answer the other’s new brief, with reply briefs filed Aug. 19.

Citizens United argued that the government had abandoned the basic rationale for the Austin decision — that is, the supposed distorting effects of large amounts of money — and was now relying on two rationales that Austin did not even consider (preventing corruption, and protecting stockholders). Neither of those, the reply contended, could possibly apply to Citizens United: it clearly did not corrupt anyone, and Citizens United has no stockholders to protect. It suggested that the FEC had given up on any challenge to Citizens United’s campaign film, in order to preserve the two prior precedents so that the FEC can rely upon them “to suppress political speech another day.”

The FEC reply reiterated its earlier themes, insisting anew that Citizens United had forfeited its constitutional challenge and now was trying to bring it up belatedly, and arguing even more forcefully about the potential corruption-inducing effect of political activity by for-profit corporations. In stronger language, the Solicitor General emphasized the point that corporations’ political activity is with “someone else’s” money — that of their shareholders or of their customers. The brief also expressed astonishment that Citizens United would make an argument that the Court should go ahead and rule on the constitutional issues, even if Citizens United could win the case on narrower grounds.

The case has produced a heavy outpouring of amicus briefs — 40 in all, with 23 of those supporting Citizens United’s side of the case.

If there is a common theme in the Citizens United side’s amici briefs, aside from direct suggestions that the Austin and McConnell decisions must be cast aside because they set up a framework that is simply unworkable and too complex for even experts to apply, it is a clarion call for a much more expansive arena for corporate free speech. As the U.S. Chamber of Commerce put it: “The corporate form is not a constitutional basis for banning core speech.” Sen. Mitch McConnell, Kentucky Republic who leads the GOP in the Senate, who will have a lawyer sharing in Wednesday’s argument, argued that “recent campaign finance legislation and litigation spawned by that legislation have too often turned First Amendment principles inside out.”

The collection on that side of the case is polyglot, ranging from the National Rifle Association to the American Civil Liberties Union. Some are there to plead their own causes, including several who urge the Court to decide the case more narrowly, by exempting not-for-profit corporations from existing restrictions if they draw only minimally on for-profit firms for their support. The California First Amendment Coalition, for example, suggests that the Court leave for another day whether government can regulate the political speech of for-profit corporations. The Reporters Committee for Freedom of the Press is in the case, it noted, to assure that, whatever happens to other corporations, news media corporations must be left out of the regulated community.

The FEC has a little more than half as many supporting amici as Citizens United, but its backers have raised the rhetorical intensity considerably. The strongest words come from Sens. John McCain (Arizona Republican) and Russell Feingold (Wisconsin Democrat) and former House Reps. Christopher Shays, a Connecticut Republican, and Martin Meehan, a Massachusetts Republican — all architects of current federal campaign finance law. They bluntly warned the Court that it would be “unwarranted and unseemly” to overrule the Austin and McConnell precedents, and argued that doing so would “severely jolt our political system.” They, too, will have a lawyer at Wednesday’s hearing.

What is somewhat surprising about many of the filings on that side of the case is how few of them undertake seriously to advocate that the Court decide the case on far narrower grounds. Most of them appeared to be driven by a felt need to take Citizens United on, directly, in its effort to get a sweeping new opening for corporations in American political finance. The Democratic National Committee suggested that the Court did not have before it, in this case, anything like the information or evidence it would need before it could undertake to make “a convulsive change in campaign finance doctrine.”

There are four amici filings that do not choose up sides. It is there that more effort is made to urge the Court to rule narrowly, perhaps by widening the exemption from existing finance restrictions on non-profit corporations. Also in the middle are 26 states, voicing worry about the potential negative impact on their campaign finance laws.

Rehearing Ordered

The Supreme Court ordered a schedule for filing new constitutional arguments when the case of Citizens United v. F.E.C. (08-205) is heard, before the opening of the new Term. The rehearing itself will be at 10 a.m. on Sept. 9, nearly a month before the formal opening of the Term on Oct. 5.

Both sides are to file their opening briefs simultaneously by July 24, with amici briefs due by July 31. Reply briefs are due by Aug. 19.

These are to be supplemental briefs — that is, confined to the new question the Court has raised, without repeating other arguments previously made in the case. The new issue is whether the Court should overrule either or both of two prior rulings on campaign finance law — Austin v. Michigan Chamber of Commerce in 1990 and part of McConnell v. F.E.C. in 2003.

In the Austin decision, the Court upheld the power of government to bar corporations from using funds from their own treasuries to support or oppose candidates for elected state offices. In the part of McConnell that the Court will reconsider, the Justices upheld a provision of the 2002 campaign finance law that bars corporations and labor unions from using their treasury funds to pay for radio or TV ads, during election season, that refer to a candidate for Congress or the Presidency, and appear to urge a vote for or against such a candidate. The Citizens United case involves a non-profit group’s campaign-season film sharply attacking the presidential candidacy of Hillary Rodham Clinton.

By scheduling the new oral argument before the next Term opens formally, the Court will repeat its approach to the McConnell decision: the argument in that case occurred on Sept. 8, 2003, in advance of the opening.

If the U.S. Senate moves with some dispatch, and approves the nomination of Justice-candidate Sonia Sotomayor, she could be on the bench for the Sept. 9 argument. Even if she is not, however, she could, if confirmed, participate in reviewing the case by reading the briefs and listening to the audiotape of the oral argument. She would not have to be physically present for the Sept. 9 session.

Oral Argument Recap

Lyle Denniston originally wrote the following for SCOTUSblog.

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.

Argument Preview

Movies, somewhat akin to documentaries but with a distinct and sometimes sharp political edge, are becoming a prominent mode of campaigning in national election cycles. The scope of federal regulation of their timing and content is before the Supreme Court in its latest major campaign finance case – Citizens United v. Federal Election Commission. The case, however, has broader implications, potentially leading to a major alteration of constitutional law in this field.

Background

In modern national election campaigns, for President and for members of Congress, increasingly sophisticated modes of communication seek to capture the voting public’s attention, and to shape election outcomes. In various media, including films, the “attack ad” is one of the most ubiquitous kinds of message that campaign organizations or private advocacy groups put out. Congress made a major effort to put some limits on such so-called “electioneering communications” — including attack ads — when, in 2002, it passed the Bipartisan Campaign Reform Act. Since then, the Supreme Court has spent a good deal of time and energy sorting out constitutional issues surrounding one of the Act’s most controversial sections — Section 203, the “electioneering communications” section. The Court in the 2003 decision in McConnell v. FEC upheld that provision as written — that is, against “facial” constitutional challenges targeting its very wording. More recently, the Court has returned with some frequency to resolving challenges to Section 203 as it has been applied in the context of specific political messages. It returns to that exploration in Citizens United v. Federal Election Commission.

Section 203 — a modern echo of federal regulation that goes back to 1907 — is aimed at corporations (including non-profit advocacy organizations using the corporate form) and at labor unions. It does not restrict corporate or union expenditures used to finance campaign communications, when those are paid for out of a PAC — a political action committee. But, if a corporation or union wishes to spend its own treasury funds, Section 203 bars the use of those funds to finance communications that refer to a clearly identified candidate for the presidency or for Congress, on radio, television, cable TV, or satellite broadcast, within 30 days before a primary election or nominating convention, or within 60 days before a general election.

In 2007, the Supreme Court, in FEC v. Wisconsin Right to Life, ruled that Section 203 only applies to communications that either urge a direct vote for or against an identified candidate, or are the “functional equivalent” of such encouragement — that is, if the communication “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” even if it does not explicitly say that is what it is urging.

Along with Section 203, Congress in the 2002 Act added two other provisions that seek to bring out into the open the sources of financing for such communications. A disclosure requirement (Section 201) provides that any corporation or union that spends more than $10,000 in a year to produce or air such communications must file a report with the FEC revealing the names and addresses of anyone who contributed $1,000 or more for the communication’s preparation or distribution. A disclaimer requirement (Section 311) provides that, if the communication is not authorized by a candidate or a political committee, the broadcast must say who is responsible for the content, plus the name and address of the group that has prepared the communication.

The disclosure and disclaimer provisions, like Section 203 itself, were upheld by the Court in 2003 against facial challenges.

Citizens United, a Virginia-based conservative advocacy group (organized as a non-profit corporation), has been centrally involved in tests of the constitutionality of the federal controls on “electioneering caommunications.” Since December 2007, it has been engaged in a court battle with the FEC over Sections 203, 201 and 311. At the center of the fight is a Citizens United film about Sen. Hillary Rodham Clinton, a Democratic presidential candidate, titled “Hillary: The Movie.”

The feature-length movie has been described by Citizens United in court papers this way: it “includes interviews with numerous individuals and many scenes of Senator Clinton at public appearances. It is about 90 minutes in length. It does not expressly advocate Senator Clinton’s election or defeat, but it discusses her Senate record, her White House record during President Bill Clinton’s presidency, and her presidential bid.”

The film actually has been shown in movie theaters, and has circulated at retail in a DVD format. Citizens United prepared three TV ads to promote the movie. The group planned to broadcast one of the ads on Fox News cable network, and on other TV networks. It planned to air two of the ads on other networks, but not on Fox. It planned to do so in what it called a “rollout advertising blitz” timed to coincide with public release of the movie in January of last year. It also had a plan to market the movie via video-on-demand on cable TV.

The ads, however, appeared to come under the federal law’s definition as “electioneering communications,” because the group was planning to air them while the presidential primary election season was unfolding. So Citizens United went to court, seeking to bar the FEC from banning the broadcast of the movie and of the ads, and from enforcing the disclosure and disclaimer rules. Among its other arguments, it contended that the movie was not an electioneering communication within the meaning of Section 203 — it did not advocate a vote for or against Sen. Clinton — and that, if it was, the Section was unconstitutional because it interfered with political speech. A U.S. District Court refused to issue a preliminary order protecting the movie and the ads from regulation by FEC. Citizens United tried to take the issue to the Supreme Court, but the Justices summarily dismissed its appeal for lack of jurisdiction on March 24 of last year (docket 07-953). (Justice Stephen G. Breyer noted that he would have upheld the District Court decision.)

The case then returned to District Court, leading to a final ruling last July on the merits, finding the movie to be covered by Section 203. That court said that the movie could not be interpreted as anything other than a message that Sen. Clinton was unfit for office, that the country would be a dangerous place if she were elected, and that viewers of the movie should vote against her.

While the promotional ads could not be barred, the District Court found, Citizens United would have to obey the disclosure and disclaimer requirements for those ads. (Because both of the District Court rulings were by three-judge courts, appeals from those decisions went directly to the Supreme Court.) Citizens United then returned to the Supreme Court.

No doubt, interest in “Hillary: The Movie” has waned, at least in its political statement, since the presidential election is over and Sen. Clinton did not win. But Citizens United’s case is not a dead letter. The FEC, which opposed Supreme Court review of the dispute, conceded that the Court had jurisdiction because Citizens United planned to do such electioneering in the future, as it did in 2008 not only against Sen. Clinton but also in a separate, critical movie about then-Sen. Barack Obama.

Jurisdictional Statement

Citizens United’s appeal, filed last Aug. 14, had as its leading point a plea to the Supreme Court to “determine the proper application” of its 2007 decision in the Wisconsin Right to Life case, narrowing the scope of Section 203’s ban on “electioneering communications.” The FEC, it complained, is not restricting its regulation of such communications to those that urge a vote for or against a named candidate, as the 2007 decision required, but is claiming authority to regulate “activity that attempts to sway public opinion on issues.”

The appeal also argued that the FEC is not restricting enforcement of disclosure and disclaimer requirements to communications that meet Section 203’s definition, but is asserting power to regulate broadcast ads even though they are protected from being banned outright. The Court, it argued, should apply its 2007 decision to protect “grassroots lobbying ads” from the additional burdens of the disclosure and disclaimer provisions.

Moreover, the appeal seeks an explicit exemption from Section 203 for movies which do not urge a vote for or against a federal candidate. “This is a movie,” its appeal said, ”not one of the broadcast ’ads’ that gave rise” to the enactment of Section 203. “While feature-length movies, and ads promoting them, have traditionally enjoyed the full First-Amendment protection traditionally afforded to books and their promotions, that is not the case here,” it protested.

Finally, it suggested that the FEC was making, as to its authority to regulate the disclosure of ads’ financing, the same argument it had made earlier about Section 203: that is, that the Supreme Court’s McConnell decision in 2003 had resolved not only facial challenges, but also had upheld the disclosure and disclaimer requirements against as-applied challenges.

Thus, in summary, the questions its appeal raised cover these points: (1) did McConnell resolve the constitutionality of as-applied challenges to the disclosure and disclaimer rules; (2) do those rules impose an unconstitutional burden when applied to ”political speech” protected by the Wisconsin Right to Life decision; (3) did that decision require, for regulation, a definite call for a vote for or against a candidate; and (4) whether a feature-length documentary can be treated as if it were an “ad” of the kind at issue in the McConnell decision.

The Justice Department, joined by the FEC, urged the Supreme Court either to dismiss Citizens United’s appeal, arguing that the District Court was right in ruling as it did. “That decision,” it argued, “rests on a straightforward application of settled legal principles.” Thus, it said, the appeal should be dismissed “for lack of a substantial federal question.” As an alternative, it proposed that the Court simply affirm summarily the District Court’s ruling.

The government response said FEC was not claiming that the McConnell decision had barred as-applied challenges to the disclosure and disclaimer requirements. The language of the 2003 opinion itself suggests no such conclusion, the brief said. The government also said that disclosure and disclaimer requirements have long been analyzed under a more relaxed First Amendment scrutiny, and the government interest in transparency during elections justifies the requirements in this context, too.

Further, the U.S. brief rejected the argument that an inability to ban the ads at issue also meant that the disclosure and disclaimer rules could not be enforced. “Compelled disclosure of financing information [regarding elections] may be permissible even when the disbursements in question have nothing to do with any candidate election,” the brief asserted.

The movie, the government contended, clearly is a form of “express advocacy” that Sen. Clinton not be elected president. It is a sustained attack on her “character and fitness,” and does not address policy or legislative issues except in a “few short portions,” the brief argued. The law, it said, simply does not exclude feature-length films, and thus is not restricted to short spots on the air.

The Court accepted jurisdiction of the case on Nov. 14, and later set it for argument on March 24.

Merits Briefs

Citizens United’s case has had a major shift in emphasis since the Court granted review. It now amounts to a sweeping constitutional challenge to any application of the 2003 Act to “feature-length movies distributed through Video on Demand.” Congress’ power to order the regulation of “electioneering communictions,” the merits brief contended, should be limited to “short broadcast advertisements, which generally target unwilling recipients.” Those who see a film like “Hillary: The Movie” are a “self-selected audience willing to invest 90 minutes of their time to watch a movie.” Thus, such films are far less likely, the brief said, “to reach and persuade undecided voters and thereby influence the outcome of an election.”

Moreover, the brief goes further, urging the Court to strike down a 1990 decision — Austin v. Michigan State Chamber of Commerce — that upheld a compelling interest for the government in regulating expression by corporations who may be very wealthy. That decision, it contended, “is flatly at odds with the well-established principle that First Amendment protection does not depend upon the identity of the speaker.”

But, it went on, even if the government might be justified in banning a movie distributed on cable TV for those who choose to see it, that should not include a film “funded overwhelmingly with individual donations.” And, it added, the movie about Sen. Clinton, while highly critical, simply cannot be banned on any theory that it would involve “political corruption.”

A similarly broad constitutional attack is aimed, by Citizens United’s brief, at the disclosure and disclaimer provisions of the 2002 Act. Since the ads in question are not “electioneering communications,” the government lacks a compelling interest in forcing revelations about their financing, it contended. Those requirements fall under “strict scrutiny,” but also would fall under a lesser standard, the brief asserted.

(Citizens United, it should be noted, turned to seasoned Court advocate Theodore B. Olson, former U.S. Solicitor General and a principal legal architect of President George W. Bush’s legal fight in winning the 2000 election, to do its merits brief, and for the oral argument. James Bopp, Jr., the Terre Haute, Ind., lawyer and conservative advocate who had been handling Citizens United’s case, filed a merits brief on behalf of an amicus, the Committee for Truth in Politics, Inc.)

The FEC and the Justice Department, in the government’s merits brief, insisted that the Supreme Court’s McConnell decision in 2003 controls the outcome of this new test. Using corporate dollars to pay for an “unmistakable” appeal for voters to reject Sen. Clinton, the brief asserted, is exactly what the McConnell ruling allowed the government to ban. The 2003 decision cannot be escaped, it added, simply because the “Hillary” movie is a feature-length film; it is “no different from buying an ‘infomercial’ on a broadcast network, as political candidates have done for years. Like any other television advertisement, Hillary uses the power of the visual medium to promote a message.” Offering it on Video on Demand only increases audience interest, it suggested.

The government implied that Citizens United had switched its attack to a broad challenge to corporate speech in political campaigns because it probably knew that its other arguments could not survive the McConnell precedent. An effort to scuttle all federal regulation of corporate-financed electioneering is simply not presented as an issue by this case, the brief contended. The Court, it added, has repeatedly reaffirmed the government’s power in that context.

Finally, the U.S. brief mounted a full-scale defense of government authority to impose disclosure and disclaimer requirements on political expression by corporations (and unions), even if the underlying communications themselves do not fall within the reach of Section 203.

In the competition over amici support, Citizens United emerged with numerically greater support, coming mainly from conservative advocacy groups (ranging from the National Rifle Association to the Cato Institute). However, the appeal also picked up notable support from a liberal-leaning group, the Reporters Committee for Freedom of the Press. The Reporters Committee argued that the District Court ruling would allow the government to “suppress a documentary that is objectively indistinguishable from other news media commentary,” and “removes this intuitive bright-line distinction that allowed journalists to do their jobs without fear of the criminal penalties associated with violating FEC regulations.”

The FEC garnered the support of the leading congressional authors of the 2002 Act, including the two whose names are often used as labels for that Act — Arizona Republican Sen. John McCain and Wisconsin Democratic Sen. Russell Feingold, along with their House counterparts, former Reps. Christopher Shays (Connecticut Republican) and Martin Meehan (Massachusetts Democrat). Their brief contended that “the arguments advanced by Citizens United threaten to undo much of what they accomplished in achieving the enactment of BCRA, to roll back long-standing provisions” of federal campaign finance law, and “even to jeopardize statutes requiring disclosure of corporate and union political and lobbying expenditures outside the field of candidate elections.”

Analysis

Citizens United, as its case approached oral argument, was going for a maximum victory — a sweeping rejection of congressional authority to regulate campaign spending by corporations (and, perhaps, by labor unions, too). Its brief thus seems quite audacious. But it may not turn out to be unrealistic. Just about two years ago, four dissenting Justices lamented that a majority of the Court had — at least by implication — overturned the 2003 decision in McConnell v. FEC, at least in the part upholding the ban on “electioneering communications.” That was their protest to the 5-4 ruling in FEC v. Wisconsin Right to Life.

And, in fact, three members of the Court in the majority — Justices Antonin Scalia, joined by Justices Anthony M. Kennedy and Clarence Thomas — said they would cast aside that ruling, as well as the 1990 decision in Austin v. Michigan State Chamber of Commerce that allowed government regulation of corporate campaign spending. In addition, Justice Samuel A. Alito, Jr., suggested that the time could come when the Court perhaps should reconsider McConnell and the validity of Section 203. That might leave just one more vote to be gathered — that of a perhaps sympathetic Chief Justice John G. Roberts, Jr. — to work a profound change in the constitutional law of campaign finance.

If, however, the Court is not prepared to go that far, it may at least be strongly tempted to craft a broader set of exemptions from Section 203. And perhaps it might seek to validate some form of public disclosure about who pays for election communications, even if it will not tolerate their banning. This is a case where the quality of advocacy at the lectern could make a significant difference in how boldly the Court is prepared to act. The key question, then, may be: are the Chief Justice and Justice Alito ready for some bold strokes?

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