How the FEC lost Citizens United … or so we think

There’s an old adage among the Supreme Court Bar that an attorney can’t win his case at oral argument, but he can lose it.  And, if that’s true, yesterday’s oral argument in Citizens United v. Federal Election Commission, No. 08-205, may have provided the latest example of the phenomenon.

As background, the Citizens United case is about whether a small ideological organization named Citizens United could pay to air a feature-length documentary entitled "Hillary: The Movie" on cable systems via Video On Demand just before last year’s presidential primary elections.

The Federal Election Commission claims that Citizens United cannot because the group is incorporated and the movie is critical of then-presidential candidate Hillary Clinton.  Thus, the FEC asserts that, as a corporation, Citizens United cannot use general funds to make the critical documentary available to cable subscribers because doing so just before an election violates McCain-Feingold’s "electioneering communications" ban.

On the other hand, Citizens United claims it can pay to air "Hillary: The Movie" on cable both because the critical documentary is protected by the First Amendment, and also because the "electioneering communications" ban does not reach feature-length movies made available via Video On Demand.  Specifically, with respect to the constitutional argument, Citizens United contends that, even though the movie is critical of then-presidential candidate Clinton, it does not cross the line to being the "functional equivalent" of asking viewers to vote against Clinton — thus, the movie is protected as issue advocacy.  And, concerning the statutory argument, Citizens United maintains that Congress only intended to regulate short 30- and 60-second political ads and not movies, and only on generally available cable channels rather than Video On Demand.

So that’s where the argument begun yesterday morning, with two well-known and well-regarded advocates ready to take up their cases before the highest court in the land.

Former Solicitor General and in-demand Supreme Court attorney Ted Olson was up first, arguing on behalf of Citizens United.  But, as it would turn out, his first 26 minutes of the oral argument probably didn’t matter much because of what was to follow.  Sure, Olson faced hostile questioning from the four justices inclined to uphold campaign finance regulation — namely, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.  But the only moment when it appeared that Olson could lose his case was when Justice Anthony Kennedy made it clear he wasn’t buying an argument Olson was selling.

Showing his frustration with Olson’s attempts to draw a distinction between short candidate ads and a feature-length documentary, Justice Kennedy shot down the argument, stating: "If we concede — and at the end of the day you might not concede this, but if we take this as a beginning point, that a short, 30-second, 1-minute campaign ad can be regulated, you want me to write an opinion and say, well, if it’s 90 minutes, then that’s different.  …  [I]t seems to me that you can make the argument that 90 minutes is much more powerful in support or in opposition to a candidate."

The rest of Olson’s initial argument was relatively uneventful, if somewhat scattered and hard to follow — as a couple justices observed — because he had too many bullets in his gun with limited time in which aim and shoot.  As a result, he never seemed to hit the bulls-eye on any of his constitutional and statutory targets.  But that lack of focus wouldn’t matter because of the government catastrophe that was about to come.

Next up for the FEC was Deputy Solicitor General Malcolm Stewart, and the argument was now his to lose — and he surely succeeded in doing just that.

Stewart had only fielded four questions from Chief Justice John Roberts before he got a line of questioning begun by Justice Samuel Alito that would lead the entire undoing of the government’s case.

Justice Alito initially asked: "Do you think the Constitution required Congress to draw the line where it did, limiting [the "electioneering communications" ban] to broadcast and cable and so forth?  What’s your answer to Mr. Olson’s point that there isn’t any constitutional difference between the distribution of this movie on video [on] demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book?  Would the Constitution permit the restriction of all of those as well?"

With those inquiries, the trap was set — and the Deputy Solicitor General took the bait.

Stewart plunged all the way in; he saw the issue as black and white: either the government had the power or it didn’t — and he was representing the government, so, of course, it did.  Thus, in answering the questions, the Deputy Solicitor General painted with a broad brush.

"I think the Constitution would have permitted Congress to apply the electioneering communication[s] restrictions … to additional media as well," Stewart responded.

Justice Alito couldn’t believe that answer.

"That’s pretty incredible," Justice Alito immediately followed up.  "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned."

Stewart still didn’t see how big a hole he was digging for himself, and that he was seriously in jeopardy of losing his case.

Justice Alito continued to follow-up.  "Well, most publishers are corporations," he noted.  "And a publisher that is a corporation could be prohibited from selling a book?"

Stewart tried to evade the question by explaining there is a mainstream media exemption to the federal campaign finance laws, but Justice Alito was not concerned about what the government would permit through its own legislative grace.

"I’m not asking what the statute says," Justice Alito stated, going on to ask, "The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?"

Stewart tried another evasion, this time based on the First Amendment’s freedom of the press clause, but again to no avail because Justice Kennedy now jumped in to change the hypothetical so that it didn’t concern the mainstream media or a publishing giant, but rather "an advocacy organization that had a book."

To this, the Deputy Solicitor General was backed against the wall, and did not retreat from his earlier pro-government regulatory position.  "[A] corporation could be barred from using its general treasury funds to publish the book and could be required to … raise funds to publish the book using its PAC" with contribution limited by campaign finance law, Stewart insisted.

Then the Chief Justice chimed in, asking whether that would be true if the book contained only "one use of the candidate’s name"?

"That’s correct," Stewart responded a few interchanges later, further explaining, "Yes, [the government's] position would be that [any] corporation could be required to use PAC funds rather than general treasury funds."

"And if they didn’t, you could ban it?" the Chief Justice made crystal clear.

"If they didn’t, we could prohibit the publication of the book," Stewart agreed.

The breadth of the government’s position shocked what seemed like the entirety of the Supreme Court bench, as well as those attending the argument.  Even pro-regulation justices, like Justices Breyer and Souter, showed and expressed their frustration.

"[S]uppose there were a kind of campaign literature or advocacy that either a corporation had to pay for …, it couldn’t pay for it through the PAC, because for some reason … and there’s no other way of getting it to the public — that would raise a Constitutional question, wouldn’t it?" Justice Breyer wondered, insisting that "I guess I would be worried if in fact there was some material that couldn’t get through to the public.  I would be very worried."

By now, realizing he had dug a hole too deep, the Deputy Solicitor General tried to change the subject to the fact that Citizens United could have used other distribution methods to get the movie into the hands of the public, like posting the video for download from the group’s Web site or for viewing on YouTube.  But Justice Alito immediately brought Stewart back to the scope and breadth of what the government was claiming it could regulate.

"If they had done either of the things you just mentioned, putting it on its Web site or putting it on YouTube," Justice Alito interjected, "your position would be that the Constitution would permit the prohibition of that during the period prior to the primary or the election?"

"Yes," Stewart was eventually forced to answer.

This prompted comments from Justices Antonin Scalia and Kennedy that seemed to demonstrate just how big the FEC’s loss could be.

"I’m a little disoriented here, Mr. Stewart," Justice Scalia sarcastically observed.  "We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of [speech and of] the press?  That’s what we’re interpreting here?"

Justice Kennedy was more specific as to how the Deputy Solicitor General could have just lost the entire statutory provision at issue.

"[I]n this case, Mr. Stewart, I take it … that you think the distinction the Petitioner draws between the 90-minute film and the short 30-second or 1-minute ad is a baseless distinction?" Justice Kennedy began.  "So if we think that the application of this to a 90-minute film is unconstitutional, then the whole statute should fall under your view because there’s no distinction between the two?" he continued, finally noting explicitly that the Deputy Solicitor General had already "argue[d] that they’re both the same."

There it was, Stewart had become a victim of that old Supreme Court Bar adage, he had succeeded in losing his case at oral argument.

Olson gave four more minutes of rebuttal, but the die was already cast, and now we only wait for how big the FEC’s loss will be.

After seeing in plain view just how much political speech the government thinks it can regulate, Citizens United could end up being a significant acceleration of the Court’s willingness to strip away what Olson described in his opening as "one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state" — namely, campaign finance law.

Fans of the First Amendment and freedom for political speech, like us here at CCP, can only hope that a clear majority of the Court will use the Citizens United case to go big and not stay at home.

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