Justices Skeptical Of Campaign Finance Laws

Loads of bytes will be typed about today's historic Supreme Court argument (Read it here: cor.pdf ) about campaign finance law, but this statement against interest from Rick Hasen, a Loyola University election law expert who generally supports reform efforts, is indicative:

"There was absolutely nothing in the Citizens United oral argument questions of the two likely "swing justices" in this case to give any comfort to those who believe that Congress should have the power to limit corporate spending in candidate elections."

By swing justices, he means Chief Justice John Roberts and Associate Justice Sam Alito. Both oppose campaign finance legislation, but Roberts, in particular, has made it clear he'd prefer that the Court tailor decisions as narrowly as possible.  But not here. The goal of this re-hearing was precisely to expand the scope of the court's eventual decision. It seemed to be an inevitable consequence when an Obama administration lawyer admitted last March that the government had the power to restrict the sale of books during the final 60 days before an election.

The arguments today seemed to center around two questions: does the Court have any business second guessing Congress if Congress has determined that the electioneering and contribution restrictions on corporations serve a compelling government interest (corruption) and are narrowly tailored (limited to television and radio ads)? And if so, and if the Court finds that it disagrees with Congress, should it rule broadly, because the case involves a core first amendment right?

A majority of the justices seemed to believe that the answer to both questions was "yes." 

The solicitor general, Elena Kagan, seemed resigned to the outcome of the case, at one point telling Chief Justice Roberts that the government would rather lose the case narrowly than broadly. Roberts had noted that the government had changed the core of its argument and wasn't arguing that Citizens United ought to be subject to the electioneering ban that triggered the court case.  Kagan urged the Court to decide the case "as applied" -- that is, based on the facts -- rather than as a "facial " challenge, based on a broader interpretation of constitutional law. The case, she admitted, raises a number of factual questions, like whether the campaign finance law ought to apply to non-profit organizations that take corporate money, or how it applies to video-on-demand programs like the one Citizens United produced.

Justice Anthony Kennedy asked whether the First Amendment issues at stake were such that the Court had no choice but to consider the legality of the statute itself. 

Stephen Breyer, a supporter of campaign finance legislation, had a different objection. If the government was now arguing that a non-profit corporation that takes some corporate money was not subject to the electioneering restrictions, and if the court's ruled in such a way that upheld the new distinction, it would create a regulatory regime that Congress hadn't wanted. Which is why, Breyer said, the Court needs to first consider whether it has the ability to question Congress's conclusion that the original legislation served a compelling interest and was narrowly tailored, both requirements of first amendment restrictions. 

Roberts asked Kagan why the government's principle "compelling interest" was the argument that the ban on corporate contributions was necessary to prevent quid pro quo corruption, especially since the Court has never agreed that preventing quid pro quo corruption was sufficient enough to justify first amendment restrictions on expenditures. 

Kagan replied that there were several compelling interests, including shareholder protection, which, she said, distinguished corporate political donations from individual political donations. And she said that the Court, in approving the campaign finance laws the first time, had amassed a factual record that suggested the corruption argument applies to expenditures, too.

"Isn't it extraordinarily paternalistic," Roberts wondered, "for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it?

It was prudent, Kagan replied.  

Justice Ginsberg asked Kagan whether unions, subject to the same rules as corporations, should be exempt because they don't face the same shareholder distortions?

No, Kagan, said. The government's anticorruption argument applied just as strongly.