Early in this morning's special-edition September oral argument in Citizens United v. Federal Election Commission—known far and wide as the Hillary: The Movie case—Justice Antonin Scalia stops newbie Solicitor General Elena Kagan as she argues that the court has never before questioned 100 years of congressional efforts to limit corporate spending in elections. "We are not," he growls at Kagan, "a self-starting institution. We only disapprove of something when someone asks us to."
As Kagan and her colleague Seth Waxman argue this morning, if the court uses this case to overrule either McConnell v. FEC (which upheld the McCain-Feingold campaign finance law in 2003) or Austin v. Michigan Chamber of Commerce, the 1990 case McConnell reaffirmed,it will be one of the self-starting-est things the Roberts Court has ever done.
When we first met this case, it involved a narrow question about whethera 90-minute documentary attacking Hillary Clinton could be regulated as an "electioneering communication" under McCain-Feingold. The relevant provision bars corporations and unions from using money from their general treasuries for "any broadcast, cable or satellite communications" that feature a candidate for federal election during specified times before a general election. A special three-judge U.S. District Court panel agreed with the FEC that the movie could be regulated. * Citizens United, the conservative, nonprofit advocacy group that produced the film, appealed. The issue last spring was whether a feature-length documentary movie was core political speech or a Swift Boat ad. But the court surprised everyone when it ordered the case reargued in September, this time tackling the constitutionality of McConnell and Austin.
Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas are already on record wanting to overturn these cases. Justice Samuel Alito and Chief Justice John Roberts have been inclined to wait. The question today is whether we wait no more.
The all-stars are out in force this morning with former Solicitor General Ted Olson representing Citizens United and Floyd Abrams representing Mitch McConnell, who'd like to strike down the statute. Solicitor General Elena Kagan represents the FEC, and Seth Waxman has 10 minutes to argue for John McCain and Russ Feingold. It is clear from minute one of oral argument that the parties to this lawsuit are plagued by very different nightmares.
Olson's nightmare is "the right to criminalize books and signs." But for Ruth Bader Ginsburg, it's the scary prospect of granting First Amendment rights to "today's mega-corporations, where many of the investors may be foreign individuals or entities." Chief Justice Roberts is terrified of putting "our First Amendment rights in the hands of FEC bureaucrats." But Sonia Sotomayor is terrified of a court that decides cases too broadly. Scalia, for his part, is afraid of muzzling America's hairdressers.
Olson says that the First Amendment says Congress can make no law prohibiting free speech. Ginsburg shoots back that nobody is being prohibited from speaking: "Corporations can give, but it has to use a PAC." Olson responds that this is just "ventriloquist speech … surrogate speech." Justice Stephen Breyer rejects Olson's contention that there is no compelling governmental interest in regulating corporate money in elections: "It's this concern about the perception that people are, say, buying candidates," he urges. Ginsburg adds, hopefully, "Wasn't there a finding before the three-judge court that federal officials know of and feel indebted to corporations or unions who finance ads urging their election?"
Justice Stevens proves that he doesn't need even one law clerk by single-handedly browbeating Olson over a footnote in a previous case. Since the name of the game today is watching the Roberts Five shrink formerly binding court precedent into thin air without being forced to overrule the cases themselves, Stevens' willingness to fight for the integrity of a mere footnote is noble, if ultimately futile.
Justice Sonia Sotomayor is on the bench this morning and—for those wondering—her white neck-cloth is more a table-runner to Ginsburg's lacy doily. About 30 minutes into argument, she asks her first question of Olson, and it's precisely the question you'd expect from someone who pledged allegiance at her hearings to minimalism: "Are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case?" Moments later she points out that "there is no record that I am reviewing that actually goes into the very question that you're arguing." If we learned anything about this woman at her hearings, she loves a big, fat trial court record.