Prior to the hearing before the United States Supreme Court in Citizens United v. FEC, many observers noted that Chief Justice Roberts and Justice Alito might be the swing votes in the case. After the hearing, most observers agreed that Citizens United appears to be headed for victory – especially in light of Chief Justice Roberts’s statement listed above. At this point, most folks are speculating about whether the Court will deliver a broad decision that fundamentally alters the political landscape by expanding corporate political activities or a narrow one limited to the specific facts in the case. We will soon learn the answer.
Listed below are a few thoughts on some of the arguments advanced by the government during the hearing.
First, the government conceded that they no longer object to expanding the MCFL exception to cover nonprofits that accept corporate contributions. However, the government did indicate that it believed it’s an issue that should be dealt with by the lower court on remand.
Second, the government has argued that the Court should not overturn Austin or McConnell citing stare decisis. However, the government also conceded in today’s hearing that the distortion rationale cited by the Austin Court as the justification for limiting corporate speech is not a compelling governmental interest. Apparently, the government now believes that shareholder protection and preventing corruption or the appearance of corruption are the only compelling governmental interests. I believe this change dilutes the effect of the government’s stare decisis argument.
Third, the government claimed to change its position on whether it has the authority under the Constitution to ban books. Specifically, the government stated that the federal campaign finance laws still apply to books, but that it has never pursued such a prosecution. In other words, the government said “we have the authority to prosecute, but we have not used it in the past so everything is okay.” Hard to see how this new argument is much of a change from the first hearing. Also, the government did state that it has the authority to prosecute pamphlets. I do not believe this argument advanced the government’s case.
Finally, Justices Kennedy and Scalia asked questions about the small business argument I raised in my pre-argument thoughts that were posted this morning. Justice Kennedy asked whether small businesses could make a valuable contribution to the political marketplace because of their expertise. Justice Scalia pointed out that the overwhelming number of businesses in this county are small businesses. If the statute is intended to prevent mega-corporations from corrupting the political marketplace, it must fall because it is not narrowly tailored to accomplish those specific purposes.
I must admit, I found today’s argument fascinating. If you are a student of politics or campaign finance professional, today was the Super Bowl. The lawyers on both sides of the case were excellent. The issues argued were important constitutional principles that go to the heart of our democracy. What makes America’s democracy unique is the strength of our judicial system and the role it plays in ensuring that our federal government stays within the boundaries established by the Constitution.