CAMPAIGN FINANCE AND FREE SPEECH: FINDING THE RADICALISM IN CITIZENS UNITED V. FEC.

• Author: Smith, Bradley A.
• Position: Thirty Sixth Annual Federalist Society National Student Symposium on Law and Public Policy

I want you to envision that you're in the United States Supreme Court. Some of you have probably been there; you've seen the room: it's got the marble engravings behind it and so on, and the Justices are up there in their black robes. Malcolm Stewart, Deputy Solicitor General, a very experienced man who's argued campaign finance cases before, is in the Supreme Court. He's arguing a case called Citizens United v. Federal Elections Commission. (1) There are a couple questions presented, but basically, it comes down to this: can the government prohibit a corporation from paying for a broadcast ad that mentions a candidate within sixty days of an election? (2) Here, the ad in question is one for a rather hackneyed documentary called Hillary: The Movie. (3) Hillary refers to--well, you know.

And during oral argument, Justice Alito finally leans over and asks if the authority to ban this broadcast ad might also apply to the Internet? (4) To DVDs that might be distributed? (5) Could it be applied to providing the same mention of a candidate in a book? (6) And Malcolm Stewart, I think, realized that he was in trouble because, while we may be amenable in the United States to prohibiting a corporation from spending a lot of money on a broadcast ad, we don't burn books. (Actually, there are a lot of people in America who would like to burn books, but we don't like to think of ourselves as people that want to burn books).

Eventually, under repeated questioning from Justice Alito, Mr. Stewart says that the Constitution would permit Congress to apply the law to a book. (7) And there's this pregnant pause there in the courtroom. Then Justice Alito just says softly, "That's pretty incredible." (8) And he goes on. He asks if a corporation that is a publisher could be prohibited from selling a book. (9)

And again, after quite a bit of hemming and hawing and saying the statute doesn't actually apply to books, and Alito saying, yeah, but what does the Constitution allow, Stewart says, yes, the government's reasoning could apply to banning a book. (10)

The bench begins to erupt, and Justice Kennedy asks, "Just to make it clear, it's the Government's position that under the statute, if this Kindle device"--remember, this is 2009, seven years ago, and Supreme Court justices aren't always known for being on top of the tech world--"if this Kindle device had a book, it could be prohibited under the Constitution, and perhaps under this statute?" (11)

And again, Stewart says, essentially, yes. (12) Although, he did point out that a corporation could form a PAC, a political action committee, collect voluntary contributions from its employees and managers, and use the PAC to publish the book. (13)

At this point, Chief Justice Roberts specifically gets in to ask about banning a book: "So, it's a 500-page book, and at the end, it says 'so vote for x'; the government could ban that?" (14) And again, after some hemming and hawing and insisting that the statute didn't really apply to books, and being challenged in response about what the Constitution allows, Malcolm Stewart again says, "Yes." (15)

And Chief Justice Roberts says, "Suppose a sign was held up in Lafayette Park"--this is a park across from the White House--"saying 'vote for so and so.' Under your theory of the Constitution, the prohibition of that sign would be constitutional?" (16) And again, noting that, "Of course, you could form a PAC," Stewart concedes that "otherwise, the answer would be yes." (17)

So, Justice Souter chimes in. Justice Souter says, "Well, what if the union were to hire somebody to write a book or a pamphlet, and then later it was published close to an election, within sixty days of an election. Would it be constitutional to forbid that?" (18) And Stewart says again, "I think it would be constitutional to forbid that." (19)

That is the case of Citizens United. That is the case in which the Supreme Court said, we don't think that's constitutional. (20) And that is the case that has people all over the country horribly upset and thinking this is a crime against the Constitution and the common man.

Let's back up and go back to the beginning. Campaign finance law is a very complex realm of law. I have found that it has become so complex that, really, I can no longer talk to students about it--not even law students, not even good law students like you folks, and especially trying to talk to undergrads and high school students. You almost can't do it. I remember years ago, I was at the FEC, and we had a visiting delegation in from China; we were working through interpreters. And finally, the interpreter said to me, "You have to stop, because I cannot explain this anymore; I am out of words to define the difference between an 'electioneering communication' and speech 'for the purpose of influencing of an election' and speech 'relative to a candidate' and 'generic electioneering.'" She said, "There's no way to keep slicing this in my vocabulary."

At the oral argument in McCutcheon v. FEC, (21) a case from a couple years ago, Justice Scalia actually said at oral argument--and Justice Scalia was a reasonably smart justice--"This campaign finance law is so intricate that I can't figure it out." (22) And he's not alone; he's only more honest than the other justices. During the same oral argument, Justice Kagan dismissed part of McCutcheon, the plaintiff's, argument by offering various hypotheticals. (23) McCutcheon's counsel responded by pointing out that even if the Court ruled in favor of McCutcheon, the hypotheticals suggested by Justice Kagan would still be illegal earmarking--a person still couldn't do those things. (24) And Justice Kagan responded that she did not think any FEC would say that that is earmarking. (25) I remember sitting there thinking, "That's very interesting because I voted at least four times to find earmarking in that situation, along with the majority of the commission, and I was 'Mr. Deregulation' on the commission." I've seen that kind of...