Watching the Supreme Court make its campaign finance jurisprudence disappear.
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.
First Amendment icon Floyd Abrams spends a fair amount of time arguing about the need for the court to decide this issue very broadly rather than on the narrow grounds that this movie ain't no attack ad. It leads into a funny conversation about stare decisis and how old a case needs to be before you can torch it. The guiding algorithm today appears to be that justices under age 60 believe that cases decided before they were born are too old to fuss about, whereas justices over 75 believe that 60-year-old cases are still headline news.
Solicitor General Kagan stands to defend the FEC, not in a frock coat but a tasteful blue pantsuit, and when Scalia pounces on her, two sentences into her opening, she scolds him as if he were an impudent 2-L: "I will repeat what I said, Justice Scalia: For 100 years this court, faced with many opportunities to do so, left standing the legislation that is at issue in this case." Kagan is so loose and relaxed, you'd think this was her 100th argument. Which allows Roberts to dispense with the kid gloves and accuse her, respectively of "giving up" an argument she made in her opening brief and "changing positions." When she is asked, in effect, if she wants to lose this case in a big way or a little way, Kagan is eventually forced to reply, "If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses if it has to lose, the answer is yes."
One of the ways the Roberts Court hopes to make all conflicting case law in the campaign finance realm disappear is to blame all prior bad case law on Kagan. When everyone is thoroughly confused about what rationale the government may advance in order to limit corporate spending, Roberts can gleefully conclude that all of Austin "is kind of up for play. …" Poof. And Austin is a problem no more.
As Kennedy bemoans the "ongoing chill" of limiting corporate speech, Scalia recites a lyric ode to the greatness of America's "single shareholder corporations. … The local hairdresser, the local auto repair shop, the local new car dealer." Kagan points again to the "100-year-old judgment of Congress that these expenditures would corrupt the federal system," forcing Scalia to retort that "Congress has a self-interest" and that "I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents." Kagan corrects him, noting that "in fact, corporate and union money go overwhelmingly to incumbents." And that this law "may be the single most self-denying thing that Congress has ever done."
Kagan goes on to distinguish humans from corporations by pointing out that "we have beliefs; we have convictions; we have likes and dislikes." When she urges that it's in the corporation's self-interest to maximize profits and that "individuals are more complicated than that," Scalia does another verse on "the new auto dealer who has just lost his dealership." It's a vision of fluffy corporate bunnies so compelling, it makes you want to give Exxon a great big hug and an African violet for the holidays.
It's Ginsburg who finally asks whether the government is still in the business of regulating books. Kagan replies that on this issue, "The government's answer has changed." And even though the provision in question doesn't cover books, we get another volley of big umbrage on the banning of books.
The morning concludes with Seth Waxman doing a sort of Shakespeare in the Park reading of "the sober-minded Elihu Root," who was "moved to stand up in 1894 and urge the people" to address "a constantly growing evil which has done more to shake the confidence of plain people of small means of this country in our political institutions than any practice which has ever obtained since the founding of our government." Which is more or less lost on the majority of the court because 1894 was soooo a century ago, and as Scalia points out, today's corporations are awesome and not the "railroad barons and the rapacious trusts of the Elihu Root era."
Alito scolds Waxman because "all this talk about 100 years and 50 years sounds like the sort of sound bites that you hear on TV." (It's funny to hear TV sound bites denigrated as junk political speech in a case about the urgent political importance of TV sound bites.) But Alito's big point here is that the court isn't considering overruling 100-year-old cases—only McConnell and Austin.
Olson very effectively uses his five minutes of rebuttal time to taunt Kagan for the government's changed positions. And while it looks as though there are five votes to fundamentally alter the way American elections will work, we've been through enough renditions of the Roberts Court slapping litigants around at oral argument then loving on them in decisions to make such predictions unwise. Of course, as Waxman suggests in his closing, it does take a somewhat "self-starting" institution to be deciding a case about campaign finance laws in which no litigant has directly raised the issues and no factual record even exists.
(Disclosure: I am on the Steering Committee of the Reporters Committee for Freedom of the Press, which filed an amicus brief in this case.)
Correction, Sept. 10, 2009: The article originally stated that a federal court of appeals agreed with the FEC. (Return to the corrected sentence.)
Dahlia Lithwick writes about the courts and the law for Slate.
Still from Hillary the Movie © 2008 Citizens United.