September 09, 2009

Live Blogging the Audio Release of the Citizens United Re-Argument

[UPDATE: With the argument broadcast now complete, you can read my Initial Thoughts on the Citizens United oral argument here.]

I will update this post throughout the morning as the audio is released. Refresh your browser or click here to see the updated post.

A few thoughts/notes in advance of the argument.

1. The argument is scheduled for 80 minutes. If it ends on time, it concludes at about 8:20 am Pacific, and the audio will be released probably within 15 minutes or so of the end of argument. It will be on C-SPAN. When I can find a better link, I will post it.

2. My "resources and roundup" post from yesterday with relevant background is here. My NYT "Room for Debate" post from last night is here. Howard Bashman has an updated roundup this morning.

3. Even though Chief Justice Roberts and Justice Alito are the swing justices in this case, I will not predict that Austin and McConnell will be overruled no matter how hostile these Justices' questions are. Most election law observers who heard the oral argument in NAMUDNO predicted that section 5 of the VRA would be struck down based upon CJ Roberts' and Justice Kennedy's comments at oral argument. And we know that's not what happened at all. I think that the Chief sees oral argument as an opportunity to air some issues and get out his true thoughts---writing an opinion for the Court, however, is another matter entirely. We'll have to wait for the opinion. (By way of reference, McConnell was argued in early September 2003 and the opinion issued early December 2003. That case had many more issues and was much more complicated, however.)

4. What to listen for? Expect Ted Olson to raise the "book banning" issue that came up in the last argument. Listen for how SG Kagan responds. We'll have to see how much Justice Sotomayor is willing to mix it up on her first day of oral argument. I'm especially interested to see how much play the Austin distortion rationale gets: will Seth Waxman bring it up? Will Kagan distance herself from the classic understanding of Austin?

5. After the live-blogging ends I am scheduled to be on PRI's To the Point and then answering reader questions at noon Pacific (3 Eastern) at Politico's Arena.

And now we await the main event....

Please forgive any typos and errors that will follow.

8:20 You can watch here an earlier ACS forum on Citizens United. This should be the same link for the oral argument release.

8:24 While we are waiting, here are Michael Kang's thoughts on the case.

8:25 AP reports that "In the arguments Wednesday morning, newly seated Justice Sonia Sotomayor jumped right into the questioning."

8:37 Still waiting for audio release. Not clear if arguments are over yet.

8:43 C-SPAN 3 is still showing pictures of Justice Sotomayor's ceremony yesterday.

8:44 C-SPAN 3 reports that the arguments wrapped up about 5 minutes ago (not clear if they went over the 80 minutes allotted or whether things started late). They still promise audio soon.


8:50 Olson is up. He mentions the distortion rationale. He says that the government abandoned the idea, which would allow the banning of books. He's wrapped both themes in his introduction.

8:54 Justice Ginsburg probes about corporate first amendment rights. She pushes hard on whether or not there are foreign owned corporations. Olson says that the first amendment applies, and then the question is applying strict scrutiny. This was a good answer by Olson

Justice Scalia asks if Congress can prevent foreign individuals from spending? Olson says he has not studied it. Justice Stevens pushes corporate/person issue. "Can there be any case?" Olson would not rule that out.

Justice Alito asks about whether media corporations owed by foreign owners would have different first amendment rights than those owned by U.S. owners? (This is a very telling question from Justice Alito, suggesting he is not bothered by the foreign spending in the election context.)

8:59 Justice Ginsburg pushes back against Olson saying that corporations are "banned" from spending. She talks about the PAC requirement.

Justice Breyer asks about the constitutionality of contribution limits. Breyer then says that the anti-corruption interest which applies to limit contributions applies as well to limit corporate spending on electioneering communications.
Olson responds by citing Buckley's statement that independent expenditures cannot corrupt and violate the First Amendment.

Justice Kennedy: Government wants to water down distinction between contributions and expenditures. He asks whether as a practical matter independent corporate spending supporting a candidate works the same as a contribution.

9:05 Lyle Denniston, who has heard the entire argument at the Court (93 minutes long), writes at SCOTUSblog: "If supporters of federal curbs on political campaign spending by corporations were hoping that Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., would be hesitant to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for restraint, the strongest impression was that they had not convinced the two members of the Court thought to be still open to an exercise in modesty. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations."

9:06 Question (from CJ Roberts?) on Bellotti/Austin distinction.

9:10 More discussion about Austin/Bellotti/magic words.

CCP has issued this statement.

9:12 J. Breyer: Would overruling Austin and McConnell leave us in a situation where corporations and unions can spend whatever it wants, but that political parties cannot? (I think the answer that the conservatives will give, as I suggest here that the next step will be for the court to strike down the soft money rules.) J. Breyer says that this would make a "hash" of the statute, to keep soft money limits in place, but to get rid of corporate limits.

9:15 Justice Sotomayor's first question, and it is my favorite so far: Why not avoid the constitutional question through statutory interpretation? Further, why reach the constitutional issue when the constitutional issue was not fully explored below?

9:15 Olson is finishing up. J. Stevens wants to hear on rebuttal about theNRA's brief. C.J. Roberts gives more time. Olson says any line drawing puts the speaker in peril.

9:19 Abrams is up.

9:21 Abrams leans heavily on NYT v. Sullivan as a first amendment precedent. J. Ginsburg goes to stare decisis. J. Scalia separates two ssues: (1) avoiding constitutional questions and (2) stare decisis (respect for precedent). Abrams argues on stare decisis that Austin was the outlier, so it should be overruled.

9:26 J. Sotomayor: legislatures have been trying to strike a difficult balance in this area. Once we apply strict scrutiny, would be be cutting off that future democratic process? You are suggesting that the courts, which created corporations as persons, could be doing more harm than good in a case that doesn't involve business corporations, and not even a typical non-profit, but an advocacy corporation.

9:30 SG Kagan is up. Kagan says that the Court had many opportunities to overturn corporate limits, but it has never done it. J. Scalia pushes back on this point. "We only disapprove of something when someone asks us to." Kagan: many litigants brought such cases, but the Court has not overruled. J. Kennedy says: this is an expenditure case, so the 100 years of contribution limits, doesn't help.

Kagan said she had three points. The justices won't let her get out of the first. Stevens: what about Snowe-Jeffords? Kagan: this is an atypical plaintiff. This is an ideological plaintiff. CJ Roberts asks if this is abandonment of argument that MCFL does not apply? Kagan: MCFL as written does not apply, but Court could adjust MCFL. (Mickey Kaus would be happy.) But this would require a remand.

Kagan: FEC has no objection to expanding MCFL . Roberts: you are giving up your MCFL argument just because we asked for reargument? CJ Roberts: why prefer overruling MCFL over Austin? Kagan gives great answer right back in Roberts' face: go with as-applied over facial challenges. Kagan says, frankly and refreshingly, that if we lose we prefer to lose narrowly.

9:37 Kennedy asks whether to hold that non-profits could be exempted. Would that be substantially overbroad? Kagan worried about conduits.

Stevens wants exception for ads paid for by individuals, even if from corporations. This is stripping Wellstone.

9:40 Mark Ambinder blogs on case.

Here is a key exchange:

9:41 CJ Roberts: You've relied on quid pro quo corruption, an interest that has not been accepted as compelling interest in independent expenditure context. Have you abandoned Austin's distortion? Roberts: Where in your supplemental brief do you support the interest that was articulated by the interest in Austin? Kagan: Shareholder protection and distortion of the shareholder's money. Roberts: This is different in that it distorts the marketplace. Roberts: Am I right that you don't rely on the market distortion issue in your brief. Kagan: we don't take Austin to be about an equalization of the speech argument. We do not rely at all on that. (Wow. This is a big deal for reasons I've suggested. Let's see if Waxman defends it.)

9:44 Scalia: if these are the interests, isn't this vast overbreadth? Think of small corporations, etc.

9:47 J. Alito asks about experience in states with no corporate limits. Are they corrupt? Kagan says that Congress's judgment is more important. J. Scalia says the problem is incumbency protection in Congress.

9:51 Discussion of shareholder protection, overbreadth

9:53 Kagan is very effective as an oral advocate. It is hard to believe this is her first appellate argument in any court. She goes toe-to-toe with Justice Scalia. It is very hot bench. I don't like the choice she made about Austin distortion, but this was a strategic choice, not a blunder. So far, unless I've missed it, she has not been asked the book banning context.

9:55 CJ Roberts asks whether the shareholder rationale assumes that shareholders are stupid. The government, "big brother," must keep an eye on my interests. Kagan: busy shareholders who own stock in mutual funds, does not have time/energy to keep a check on this.

J. Ginsburg says that it is different in the union context, because of the right of union members to get money back. Ginsburg: Should unions be taken out of BCRA for this reason? Kagan: government has an anti-corruption interest here, not a shareholder protection point.

Comments from Senators McCain and Feingold on oral argument quoted here.

9:59 CJ Roberts comes back to understanding what Austin means. Roberts asks for a page citation where in Austin there is shareholder protection? He pushes Kagan very hard on this point. "You are asking us to ... continue the Austin opinion on the basis of two rationales we have never accepted, shareholder protection and quid pro quo corruption." Kagan: What has changed since that time is the BCRA record about quid pro quo. Is that a "yes"?

Wow. What a hot bench. The Justices are fighting to get their questions out. Kagan is concluding. Waxman is about to come up?

Ginsburg asks Kagan: what about the book banning? Kagan: The government's answer has changed. BCRA s 203 does not apply. 441b does apply on its face to other media. We took the Court's reactions at the last argument very carefully. The government's view is that 441b as written covers books, but there would be a strong basis for an as-applied challenge in that context. And it has never been at issue before FEC in 60 years. (J. Scalia asks about overbreadth again.)

CJ Roberts: "We don't put our First Amendment rights in our hands of FEC bureaucrats. What about a pamphlet?"

Alito: What if you could view it for free on the Internet? Get it from Netflix? In light of your retraction, I have no idea where the government would draw the line. Which could be covered and which could not?

Scalia: Is your client going to be covered by the fact that he likely won't go to jail if he publishes the book?

Waxman is up, for the BCRA sponsors.

CJ Roberts looks at history of regulation as cited in Allison Hayward's amicus brief.

More talk of history. Waxman only has 10 minutes of argument. He may not be able to get much more out than the reference to the "sober minded Elihu Root."

He's using Root to make the distortion rationale.

Scalia says most corporations are not wealthy.

Waxman: small corporations can try to bring an as-applied challenge in such circumstances.

J. Kennedy: history applies to contributions, not expenditures.

Waxman: Corporations do speak on ballot measure issues, and thanks to WRTL, there's lots that corporations can say in candidate campaigns.

Justice Alito: Saying 100 or 50 years of history is a "sound bite." The only question here is about overruling Austin and McConnell.

Waxman: Main point: "We have here a case in which the Court has asked a question that goes to the bona fides of the interests, whether it is distortion, shareholder protection, etc.

J. Alito: It is no answer that this has never been challenged.

CJ Roberts: When CU abandoned its decision, government complained. Waxman: The evidence went only to as-applied challenges. If you want to reexamine the predicates of Austin, it should be done in a case in which the issue is squarely presented so the government can do what it did in other contexts: provide evidence.

Olson is back up for rebuttal for five minutes.

10:18 The takeaway is "the government's position has changed." Books no, but pamphlets, yes. Ginsburg: statute does not apply here.

Government has also changed its position on what kind of corporations could be covered. (Olson is very effective in showing that this raises the danger of government arbitrary enforcement that will chill First Amendment rights.)

10:22 Ginsburg: Not really an equalization rationale. Olson: Not clear the rationale, but it is overbroad.

Case is submitted. I will write now write a new post with some views on the oral argument.

Posted by Rick Hasen at September 9, 2009 07:54 AM