Citizens United v. FEC: Did the Solicitor General blow it? Or is the problem the theory?

Citizens United v. FEC is heading back to the Supreme Court in September, specifically to consider whether Austin v. Michigan Chamber of Commcerce and/or portions of McConnell v. FEC should be overruled.  The “reform” lobby is freakin’ out, making apocalyptic predictions  and uncertain whether the problem is that the Supreme Court seems poised to upend something landstanding – a “100 year old” law (never mind its racist pedigree and dated relation to the realities of modern life)  – or something new (“a precedent less than 6 years old”).  But clearly they are concerned that there is a realistic possibility, and perhaps a probability, that Austin will be overruled.

In this context, there has been something of an effort to blame the Solicitor General for blowing the oral argument.  The idea is that Deputy SG Stewart, who argued the case, said way too much when he declared that the government had constitutional authority, per Austin and McConnell, to ban books.  But this overlooks the fact that this was not some ill-thought out, off-the-cuff comment – what Stewart argued is what the government briefed. 

The government specifically argued in its brief that even one line of express advocacy in a communication by a corporation made the entire communication invalid, regardless of overall length.  Appellee’s brief at 11, 21.  The government states, seriatim, that ALL corporate communications containing express advocacy can be prohibited, and further, that that is determined by the Court’s prior precedent, most notably Austin.  The government specifically argued that there were NO constitutional exemptions to this except for the press exemption and the MCFL exemption. p. 25-26. Putting it another way, what the government argued is the logical end game of reform.

In a post to an Election Law Listserve (quoted here with permission), Professor Richard Hasen argues that Stewart could have dodged the book banning question by saying something like this:

Congress passed BCRA after carefully examining the extent to which corporations and unions were running TV and radio (and satellite and cable) ads likely to affect federal elections, mentioning federal candidates, broadcast 30 days before a primary or 60 days before a general election, reaching at least 50,000 people and targeted to the relevant audience.  Congress determined that the government interests identified in Austin, which the plaintiff did not challenge in the court below, apply to such ads, which are a major part of federal campaigning.  Congress identified no such interests with regard to corporate-funded book publishing, and it is not at all clear that books implicate the same Austin interests as these electioneering communications.  Books do not play the same role in campaigns, and therefore the danger of Austin “distortion” is not present.   Congress also determined that the EC PAC requirement would not be overbroad.  In the unlikely event Congress ever tried to impose EC-like PAC requirements on corporate book publishing, the Court would have to examine the evidence supporting a PAC requirement for corporate-funded book publishing and look at the extent of the overbreadth.  It could well be unconstitutional.  (VOD, Stewart could have added, raises the same dangers at TV/radio ECs, and is not like books.)

But Professor Rick Pildes, another leading scholar who, we might point out, shares neither CCP’s nor Professor Hasens views on “Reform,” dices this argument.  Says Pildes (again, quoted by permission):

Rick H. says Congress only looked into the role of broadcast ads, not books, in campaigns.  That’s true, but it’s just as true about video-on-demand movies.  Congress did not specifically look into their role either.  This point is a historical or empirical point, not one of legal principle, but in any event, it seems a wash to me — not a basis for a legal principle that distinguishes books and VOD movies.  Not much thought was given to either at the time BCRA was passed.

Pildes continues:

Rick H. appears to think there’s a significant difference for constitutional purposes between “express advocacy” and “the functional equivalent of express advocacy.”  That comes as news to me, but perhaps there is an argument to be made there; if so, I would like to hear it laid out.  I would think the two are and will be treated the same constitutionally because the latter is, well, the functional equivalent of the former.  Since they are, by definition, equivalent, I would think government would have just as much or as little power to regulate either.  Relatedly, Rick H. thinks Justice Alito accepts the constitutionality of Congress prohibiting GM from funding a book that says “Reelect Obama,” but that the Constitution might prohibit Congress from adopting a similar prohibition if GM funds a book that is the functional equivalent of its “Reelect Obama” book.  For the reasons just given, I’m skeptical about the premise.  I don’t see the evidence that Justice Alito agrees with Rick that Congress has the power to prohibt GM from funding a book of express advocacy, but suddenly becomes troubled when the book is merely “the functional equivalent” of express advocacy.

Rick H. then suggests perhaps the media exemption will protect GM when it funds a book publication if, but only if, the book involves the functional equivalent of express advocacy.  Is the idea that GM suddenly becomes a media company when it publishes a book?  If so, why isn’t that just as true when it publishes a book involving express advocacy?  I doubt GM falls under the media exemption when it publishes, but if it does, then I doubt even more this exemption comes and goes depending on whether the book is express advocacy or only its functional equivalent.  Since Rick H. is sure GM can be barred from publishing a book of express advocacy, I’m not sure how strong even he thinks this appeal to the media exemption actually is. 

And here we get to the nuts. What is the Constitutional distinction between a movie made available on direct TV, vs. a book that sells a million copies and is on public display in bookstores?

There is another problem with Professor Hasen’s approach, which is the “anti-circumvention” argument that reformers have advocated, most successfully in McConnell.  Movies were never much of an issue prior to BCRA.  Movies have become an issue, however, due to the constraints of BCRA and more modern distribution, such as satellite and video and demand.  We can expect that if satellite movie distribution is limited, we will see advocates and campaigns turn to another medium, such as books and internet, including satellite devices such as kindle.   These media would then become the new “loophole.”  So even if the government had argued throughout that books did not present the same danger as video on demand movies – is that really a very convincing argument, by the way? – a smart judge such as Alito – who asked the questions that brought Assistant SG Stewart to admit that the government believes it can ban books, would have asked, “And if Congress did find such a danger existed, could it ban books?”

What the government argued is hardly extreme by “reform” standards.  We live in a society in which leading election law scholars (such as Ned Foley and Professor Hasen) and leading constitutional law scholars (such as Owen Fiss and Mark Tushnet) have argued that the government should censor the press to promote political equality.  Professor Hasen likes to refer to himself as a supporter of “reasonable regulation.”  It appears that in Citizens United, the Assistant SG’s mistake was to speak the truth about campaign finance reform.