CQ TODAY ONLINE NEWS
– LEGAL AFFAIRS
Sept. 9, 2009 – 4:06 p.m.
Administration Shifts on Campaign Finance Law’s Treatment of Books
By Keith Perine, CQ Staff
The Obama administration, during a special oral argument session before the Supreme Court, retreated Wednesday from its earlier position that federal restrictions on corporate campaign spending could be properly applied to books.
The administration’s disavowal of its previous position on regulating books might be the only thing that prevents the court from deciding to overturn two major campaign finance precedents — including a 2003 decision that upheld a portion of the 2002 law (PL 107-155) known as McCain-Feingold after its Senate sponsors.
It’s possible that the administration’s shift could assuage the concerns of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. , the two conservative justices whose votes are likely to decide the case.
By dropping books from the discussion, the administration might be able to protect regulations on other forms of corporate campaign spending.
Wednesday’s session was the second in the case, Citizens United v. Federal Election Commission, which began as a challenge to McCain-Feingold restrictions on “electioneering communications” funded by corporate or union general treasury funds and broadcast within fixed windows before primaries and general elections.
The plaintiff, a nonprofit corporation, had challenged an FEC decision that it could not distribute a documentary critical of then-Democratic presidential contender Hillary Rodham Clinton through video on demand via cable television during the 2008 Democratic primary season.
At the first argument session in March, the administration said the federal government also could restrict the dissemination of books paid for with corporation and union general treasury funds. That stance drew skeptical questions from Roberts and Alito.
But on Wednesday, Solicitor General Elena Kagan said “the government’s answer has changed.”
Kagan told the court that the relevant federal law — which is different from the McCain-Feingold language at issue in the case — would be vulnerable to a “ quite good” legal challenge.
Kagan also observed that the FEC has never challenged a book, which prompted a swift retort from Chief Justice John G. Roberts Jr.
“We don’t put our First Amendment rights in the hands of FEC bureaucrats,” Roberts said.
Still, Kagan’s change of position on books could address Roberts’ or Alito’s concerns that restrictions on corporate campaign spending are too onerous.
Talk of Precedents
The two precedents at issue are a 1990 decision in Austin v. Michigan Chamber of Commerce, which held that limits on corporate spending related to elections were valid; and the part of the court’s 2003 decision in McConnell v. FEC that upheld the relevant part of McCain-Feingold.
Advocates of campaign finance regulations say that if the court reverses itself, it could unleash a flood of corporate spending that could unfairly influence the electoral process. Opponents of the relevant restrictions say those fears are overblown.
Three of the court’s conservatives — Antonin Scalia , Anthony M. Kennedy and Clarence Thomas — have made no secret of their desire to overrule both Austin and McConnell. So Roberts and Alito likely hold the deciding votes.
“It was just six years ago that the Supreme Court upheld the electioneering communications provision in McCain-Feingold and nothing has happened in that time to warrant the drastic step of overruling that decision,” Arizona Republican John McCain and Wisconsin Democrat Russ Feingold — both of whom attended the argument — said in a joint statement. “During his confirmation hearing, Chief Justice Roberts, whom we both voted for, promised to respect precedent. If he casts the deciding vote to overrule Austin and McConnell, it would completely contradict that promise, and could have serious consequences for our democracy.”
It was not clear from Roberts’ or Alito’s questioning on Wednesday that either justice would go so far as to join a majority to strike down the precedents. But both justices signaled they are skeptical of government restrictions on corporate campaign spending.
The court’s three liberals — John Paul Stevens , Stephen G. Breyer and Ruth Bader Ginsburg — appeared ready to uphold the McCain-Feingold restrictions. Sonia Sotomayor, the newest justice, seemed to signal with her questions that at the very least, she would not vote with the conservative bloc to overturn Austin and McConnell.
Scalia took a shot at Congress, saying that lawmakers have a “self-interest” in regulating campaign contributions, and that he is always “suspicious” of Congress when it brushes up against First Amendment free speech protections.
Kagan replied by observing that the majority of campaign contributions are made to incumbents.
“This may be the single most self-denying thing that Congress has ever done,” Kagan said.
Before that exchange, Breyer asked Theodore B. Olson, a former solicitor general who argued Wednesday on behalf of Citizens United, whether he was urging the court to “second-guess” how Congress wrote the 2002 law.
“You must always second-guess Congress when the First Amendment is in play,” Olson said.
Besides McCain and Feingold, Senate Minority Leader Mitch McConnell , R-Ky. — the plaintiff in the 2003 case — was in the courtroom, as was Connecticut Democratic Sen. Christopher J. Dodd . Floyd Abrams, a noted First Amendment lawyer, argued on behalf of McConnell on Wednesday. Former Solicitor General Seth P. Waxman argued on behalf of McCain, Feingold, and the House sponsors of the 2002 law, former Connecticut Republican Rep. Christopher Shays (1987-2009) and former Massachusetts Democratic Rep. Martin T. Meehan (1993-2007).
Dodd’s fellow Connecticut Democrat, Rep. John B. Larson , said he would push for House action on his bill (
“The hearing before the Supreme Court today is further evidence of how broken our campaign finance system is and how badly we need true reform,” Larson said.
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