If I were teaching election law this semester, I would make the transcript in today’s oral argument in the Citizens United case required reading. Deputy Solicitor General Malcolm Stewart came in for very tough questioning, on an issue the Court certainly does not need to reach in order to find for Citizens United in this case: may Congress constitutionally bar corporations such as General Motors from spending treasury funds on books or materials beamed via Satellite to a device like a Kindle that feature a candidate for office and that either contain express advocacy or are the functional equivalent of express advocacy? To be clear, the statute barring the use of corporate treasury funds to pay for “electioneering communications” does not reach books (whether it reaches Kindle via Satellite is an interesting statutory interpretation question—I would likely say no). But much of the time was devoted to the question whether Congress could hypothetically pass such a statute consistent with the Constitution’s guarantee of free speech.
In retrospect (and not to demean Mr. Stewart, who is an excellent advocate), Stewart should have deflected the questions by equivocating on the question, stressing the Court did not need to reach the issue in this case. The idea that the government could ban the use of corporate funds for books did not sit well even with the liberal Justices—it really took the wind out of Stewart’s sails. What he could have said as well is that the Court in McConnell upheld the electioneering communications provision under a strict scrutiny standard based upon a detailed record compiled by Congress showing the effect of campaign broadcast ads on elections. It is the distorting effects of such ads, and not other corporate (and union) activity, that was the target of BCRA. (He likely did not want to make this argument, because it would have strengthened Ted Olson’s point that Congress was aimed at 30-second ads, and not 90 minute movies). So the question whether there would be a sufficient evidentiary record to apply an electioneering communications test to books under strict scrutiny is unknown.
But Stewart’s argument played into Olson’s hands. By taking an extreme position that could be seen as akin to throwing someone in jail for writing a book, or book-banning, Stewart went way down the slippery slope, making it more likely that a majority on the Court (Alito, Roberts, Kennedy, Scalia, and Thomas) will want to say something about the Constitution, and not merely decide, as I’ve suggested, that the video-on-demand delivery of the anti-Clinton movie simply is not covered by the statute.
The one bright side for supporters of reasonable campaign finance regulation is that the disclosure rules seem relatively safe, at least based on the questions. The only notable exchange occurred when Chief Justice Roberts questioned whether the Brown v. Socialist Workers exemption for disclosure requirements was too harsh on those seeking an exemption. Under the exemption, a person or group claiming they face threats of harassment if their contributors were disclosed must demonstrate a likelihood of actual harassment. The Chief questioned whether this standard was too harsh on some groups. But I would be shocked if there was a majority of the Court poised to gut the disclosure provisions of BCRA.