It may one day be fair to say that the campaign finance “reform” movement was dealt a fatal blow that day in March 2009 when Deputy Solicitor General Malcolm Stewart responded to a question from Justice Alito.
Alito’s question was simple: Could the government ban political books that contained express advocacy if an incorporated entity was involved?
After much ducking, weaving, bobbing, and a few desperate clicks of his heels while shouting “there’s no place like home, there’s no place like home,” Stewart gave the answer that 100 years of campaign finance “reform” had forced him into: Yes. The government did have the power to ban books.
To say that this caused a stir would be an understatement. Banning books? Seriously?
Prior to this moment, it was unclear just how the Citizens United case would turn out. Many observers were confident that Citizens United would ultimately prevail, but probably only in a fairly narrow ruling — an expansion of the Massachusetts Citizens for Life exception, perhaps, or a ruling turning on the video-on-demand distribution of Hillary: The Movie that Citizens United had been denied by the Federal Election Commission.
Chief Justice Roberts is often referred to as an “minimalist,” meaning that he generally isn’t going to favor a sweeping decision striking down laws on broad constitutional principles when a narrowly tailored ruling will produce the same result in the case before him. Accurate or not, this perception led many to believe that while Citizens United may win an as-applied challenge, a broad facial victory was unlikely.
It is sheer speculation on my part, but I think that after Stewart’s comments, which drew unsympathetic comments even from generally pro-“reform” Justice Breyer, Chief Justice Roberts came to following conclusion: If campaign finance regulation allows for book banning, well, “enough is enough.” If it is a choice between upholding a precedent or two that tolerates government bans on books, or reversing the Court’s prior decisions to end this assault on the First Amendment, well, Chief Justice Roberts was going to follow the latter course.
More speculation on my part, I do not believe that Solicitor General Kagan really helped the government’s case in reargument yesterday on the book banning issue, despite reporting to the contrary that she had reversed the government’s position.
The New York Times, for example, reports that “Ms. Kagan disavowed a statement that a government lawyer made when the case was first argued in March. The lawyer said the government could ban the distribution of books paid for by corporations before elections.
“The government’s answer has changed,” Ms. Kagan said, adding that the Federal Election Commission had never tried to regulate distribution of books.
A close reading of the transcript, however, reveals that General Kagan did not change the government’s answer. She suggests that someone who had their book banned by the FEC would have a “quite good as-applied challenge,” and suggests (wrongly, it turns out) that the FEC has never pursued books in any enforcement issue.
This is not the same, however, as saying flatly that under no circumstances does the government have the authority, under the Constitution and the First Amendment, to ban books for political content. Instead, Kagan asserts only that the statute in question (203) does not currently cover books, while conceding that another (441b) does cover books — but she promises they won’t use it to go after books. Promise, pinky-swear!
Fortunately, Chief Justice Roberts did not seem to accept General Kagan’s pledges that the government would not exercise the power to ban books that she seems to still believe the government possesses. “We don’t put our First Amendment rights in the hands of FEC bureaucrats,” Chief Justice Roberts observed.
General Kagan had an unenviable task yesterday, and the logic of “reform” and the laws that her office requires her to defend left her little room to get away from the simple fact that, yes, the government could ban books under the Austin precedent. It is this fact, more than any other, that is likely to lead the Supreme Court to overturn these previous rulings (or at least portions of McConnell), and to restore the Buckley ruling in 1976 as the guiding precedent on campaign finance regulations.
While the impact of returning to Buckley will not be anything like what “reformers” are predicting (multi-million dollar campaigns targeting candidates who don’t toe the corporate line, voters powerless to vote the way they want because of a corporate-funded ad they saw, cats and dogs living together, etc.), there undoubtedly will be far-reaching effects.
Justice Breyer in his questioning yesterday seemed to grasp this, noting that political parties (candidates too?) would be at a distinct disadvantage to corporations and unions allowed to spend unlimited funds with no restrictions on contribution size (other than the funds available in the treasury, of course). One solution likely to be considered (at least I hope so) would be eliminating the so-called “soft money” ban, or at least raising the contribution limits for “hard dollars” to parties and candidates.
Similarly, schemes to allow politicians to loot the treasury to fund their campaigns such as the Fair Elections Now Act would probably die a well-deserved death. Few candidates would be willing to limit themselves to only $100 per contributor knowing that they could be at a significant disadvantage to corporations, unions, and interest groups willing to spend against them. Even candidates confident of the support of such groups would have to be concerned about coordination charges, since the groups running ads may be the ones they rely on to raise the qualifying contributions needed to receive taxpayer dollars.
It’s a stretch to say that campaign finance regulation will wither away as a result of a ruling overturning Austin and striking down the electioneering communications provisions of McCain-Feingold. But it is hard to imagine the well funded movement for stricter and increasingly burdensome campaign finance regulations surviving over the long term under Buckley‘s constraints as anything other than a fringe movement demanding a Constitutional amendment modifying the First Amendment to put political speech squarely under government control.
*This post has been slightly modified from the original for gramatical and technical accuracy.