October 23, 2012

Q and A on Citizens United v. Federal Election Commission Oral Argument With Richard L. Hasen

Q and A on Citizens United v. Federal Election Commission Oral Argument With Richard L. Hasen

Can you briefly review how this case got to the Court and what are the main issues?
An ideological corporation produced an anti-Hillary Clinton documentary. It wanted to air it during the presidential primary season through a cable television "video-on-demand" service and to advertise for it on television. McCain-Feingold bars certain corporate-funded television broadcasts, such as this documentary, in the period before the election and requires disclosure by the funders of election-related broadcast advertising, such as these ads. The question before the Court is whether these limits and disclosure rules are unconstitutional as applied to this case. You can find much more detail in my case preview.

How did the oral argument go?
From my reading of the transcript and the news reports on the case, it sounds like things went worse for the government on the corporate spending question than expected. (There was very little questioning about the disclosure requirements, and I continue to believe those are likely to be upheld by the Court). Deputy Solicitor General Malcolm Stewart came in for very tough questioning, on an issue the Court certainly does not need to reach in order to find for Citizens United in this case: may Congress constitutionally bar corporations such as General Motors from spending treasury funds on books or materials beamed via Satellite to a device like a Kindle that feature a candidate for office and that either contain express advocacy or are the functional equivalent of express advocacy? To be clear, the statute at issue in the case barring the use of corporate treasury funds to pay for "electioneering communications" does not reach books (whether it reaches Kindle via Satellite is an interesting statutory interpretation question). But much of the time was devoted to the question whether Congress could hypothetically pass such a statute consistent with the Constitution's guarantee of free speech. Stewart took a broad reading of constitutional power to regulate corporate spending on many election-related activities.

Stewart's argument played into the hands of Ted Olson, counsel for Citizens United. By taking an extreme position that could be seen as akin to throwing someone in jail for writing a book, or book-banning, Stewart went way down the slippery slope, making it more likely that a majority on the Court (Alito, Roberts, Kennedy, Scalia, and Thomas) will want to say something about the Constitution, and not merely decide, as I've suggested, that the video-on-demand delivery of the anti-Clinton movie simply is not covered by the McCain-Feingold statute.

Which if any side do you think should have come out feeling good about their hour in Court?
Because the corporate spending issue is likely more important to Citizens United than the disclosure issue, and because it appeared from the questioning that a majority of the Court will somehow side with Citizens United on the corporate spending issue, Citizens United probably is confident right now.

What do you think the Court saw as the strongest argument?
Olson had a receptive audience in a majority of Justices that the ban on corporate spending on a documentary attacking a candidate violates the First Amendment. It was not clear going into the argument that the focus would be on constitutional, as opposed to statutory, issues. The argument got traction because of the strong contrary position taken by the government, which appeared to bother the Justices.

Which argument seemed to get the least traction with the Justices?
The government’s First Amendment argument.

Were there any questions or discussions that surprised you?
I expected the government to deflect the question about applying limits on things like corporate spending for book publishing. In retrospect (and not to demean Mr. Stewart, who is an excellent advocate), Stewart should have deflected the questions by equivocating on the question, stressing the Court did not need to reach the issue in this case. The idea that the government could ban the use of corporate funds for books did not sit well even with the liberal Justices---it really took the wind out of Stewart's sails. What he could have said as well is that the Court in McConnell upheld the electioneering communications provision under a strict scrutiny standard based upon a detailed record compiled by Congress showing the effect of campaign broadcast ads on elections. It is the distorting effects of such ads, and not other corporate (and union) activity, that was the target of BCRA. (He likely did not want to make this argument, because it would have strengthened Olson's point that Congress was aimed at 30-second ads, and not 90 minute movies). So the question whether there would be a sufficient evidentiary record to apply an electioneering communications test to books under strict scrutiny is unknown.

What was the media coverage of the argument like? If there was any, do you think it was a fair representation?
The media coverage was consistent in focusing on how the argument took a surprising turn as Stewart went down the slippery slope on the First Amendment question. Adam Liptak led his New York Times story as follows: “A quirky case about a slashing documentary attacking Hillary Rodham Clinton would not seem to be the most obvious vehicle for a fundamental re-examination of the interplay between the First Amendment and campaign finance laws. But by the end of an exceptionally lively argument at the Supreme Court on Tuesday, it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court’s 2003 decision upholding the McCain-Feingold campaign finance law, which regulates the role of money in politics.”

Any guesses on how the case will be resolved? Did any of the justices show their hand?
As noted above, I expect Citizens United to win on the campaign spending issue, either on constitutional or statutory grounds, and to lose on the disclosure issue. The case could be significant for clarifying (or further muddying) the law in both of these areas. On the spending issue, it could lead to greater campaign finance deregulation.