CITIZENS UNITED v. FEDERAL ELECTION COMMISSION
Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president.
In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety of restrictions to "electioneering communications." Section 203 of the BCRA prevents corporations or labor unions from funding such communication from their general treasuries. Sections 201 and 311 require the disclosure of donors to such communication and a disclaimer when the communication is not authorized by the candidate it intends to support.
Citizens United argued that: 1) Section 203 violates the First Amendment on its face and when applied to The Movie and its related advertisements, and that 2) Sections 201 and 203 are also unconstitutional as applied to the circumstances.
The United States District Court denied the injunction. Section 203 on its face was not unconstitutional because the Supreme Court in McConnell v. FEC had already reached that determination. The District Court also held that The Movie was the functional equivalent of express advocacy, as it attempted to inform voters that Senator Clinton was unfit for office, and thus Section 203 was not unconstitutionally applied. Lastly, it held that Sections 201 and 203 were not unconstitutional as applied to the The Movie or its advertisements. The court reasoned that the McConnell decision recognized that disclosure of donors "might be unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular cause," but those circumstances did not exist in Citizen United's claim.
1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional?
2) Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"?
3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA?
4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?
No. No. Yes. Yes. The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.
In a separate concurring opinion, Chief Justice Roberts, joined by Justice Alito, emphasized the care with which the Court handles constitutional issues and its attempts to avoid constitutional issues when at all possible. Here, the Court had no narrower grounds upon which to rule, except to handle the First Amendment issues embodied within the case. Justice Scalia also wrote a separate concurring opinion, joined by Justices Alito and Thomas in part, criticizing Justice Stevens' understanding of the Framer's view towards corporations. Justice Stevens argued that corporations are not members of society and that there are compelling governmental interests to curb corporations' ability to spend money during local and national elections.
ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONER
Chief Justice Roberts: We will hear argument today in Case 08-205, Citizens United v. The Federal Election Commission.
Mr. Olson: Mr. Chief Justice, and may it please the Court: Participation in the political process is the First Amendment's most fundamental guarantee.
Yet that freedom is being smothered by one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state.
In the case that you consider today, it is a felony for a small, nonprofit corporation to offer interested viewers a 90-minute political documentary about a candidate for the nation's highest office that General Electric, National Public Radio, or George Soros may freely broadcast.
Its film may be shown in theaters, sold on DVDs, transmitted for downloading on the Internet, and its message may be distributed in the form of a book.
But its producers face 5 years in prison if they offer it in the home through the vehicle of Video On Demand.
Because the limitation on speech, political speech, is at the core of the First Amendment, the government has a heavy burden to establish each application of a restriction on that form of speech is a narrowly tailored response to a compelling governmental interest.
The government cannot prove and has not attempted to prove that a 90-minute documentary made available to people who choose affirmatively to receive it, to opt in, by an ideologically oriented small corporation poses any threat of quid pro quo corruption or its appearance.
Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee.
Justice Souter: Mr. Olson, if the film were distributed by General Motors, would your argument be the same?
Mr. Olson: Well, it wouldn't -- definitely would not be the same because there are several aspects of the argument that we present.
However, in one respect, it would.
A 90-minute documentary was not the sort of thing that the -- the BCRA -- that the Congress was intended to prohibit.
In fact, as the -- as the Reporters Committee for -- for Freedom of Speech points out, the documentary is objectively indistinguishable from other news media commentary--
Justice Souter: But the -- the point, then, of similarity is you would, whether it was offered by General Motors or offered by -- by this Petitioner, in effect call for some qualification of the -- the general rule allowing limitations on corporate political activity of -- of the speech variety?
Mr. Olson: --Yes, we would, although it is a very important factor.
Justice Souter: So how would we draw the line?
Mr. Olson: Well, one of the reasons that -- one of the bases upon which you would draw the line is to look at the documentary -- the voluminous documentary record that the government cites and this Court cited in the McConnell case as a justification for the restrictions themselves.
Justice Souter: Well, would every -- in effect, every limitation on corporate speech or on corporate expenditure and the nature of speech be subject, then, to in effect this all-factor balancing test?
Mr. Olson: --Well, I think what I'm trying to say is that what the -- what the Congress was concerned with -- and Judge Kollar-Kotelly in the district court opinion that you considered in McConnell discusses this on page 646 of her opinion -- that this sort of communication was not something that Congress intended to prohibit.
You would look at, if Congress intended to prohibit 90 minutes--
Justice Souter: So -- so your -- your argument then is there's something distinct about the speech, which could be considered regardless of the corporate form?
Mr. Olson: --Well, that's part of our argument, yes.
Justice Souter: If that is the case, what is -- what is the answer to this?
That -- that still is going to involve a -- a fairly complicated set of analyses, probably in a lot of cases.
Why is that necessary or worthwhile to preserve First Amendment values when you could have done this with a PAC?
Mr. Olson: --Well, as this Court said in the Wisconsin Right to Life case just a couple years ago, that the PAC vehicle is burdensome and difficult--
Justice Souter: That's right.
You've got reporting.
You've got limitations on -- on corporate contributions and so on, but in this case, for example, most of your contributions, as I understand from the record, were individual.
They weren't corporate.
There was one perhaps.
There was some corporate contribution--
Mr. Olson: --Yes, on page 252 of the appendix and 251, it points out -- you're absolutely correct -- that 1 percent of the contributions--
Justice Souter: --Okay.
Mr. Olson: --were from corporations.
Justice Ginsburg: Was that -- was that established?
I thought that the record was hardly made of the contributors to this film.
I think there was something like $200,000 accounted for, and the film cost -- to get the Channel '08, whatever it was, to put it on cost over a million dollars?
Mr. Olson: The government sent an interrogatory, Justice Ginsburg, asking for the major contributions with respect to this project, and the ones that they sought -- the government sought what they thought was important; the answer to that interrogatory is at page 251a and 252a -- that the government was seeking information with respect to contributions at a $1,000 or more; 198,000 came from individuals.
And, by the way, the three largest contributors that are listed on page 252 of the Joint Appendix are given credit in the film itself.
So there's no effort to -- to conceal those individuals.
So that it is possible -- it's possible that corporations throughout America were giving small amounts of money to this.
That record doesn't establish one way or the other.
What it does establish is what the government felt was necessary for its case that the major contributors were individuals and not corporations.
Justice Breyer: You have answered Justice Souter.
I took your answer to be the following: That if the corporation had paid -- paid for a program and the program was 90 minutes which said vote for Smith, vote for Smith over and over -- that's the program -- that you concede that the government could ban this under the Act.
Mr. Olson: Well, it's -- it is difficult--
Justice Breyer: I don't think they would.
It's an imaginary hypothetical.
But, in fact, if they did have 90 minutes of vote for Smith or vote against Jones, you concede for purposes of this argument that the government can ban it.
Is that bright or not?
Mr. Olson: --If -- not by this organization.
We think that if it's a small, nonprofit organization, which is very much like the Massachusetts--
Justice Breyer: Okay, okay.
So one of your arguments is this is a special corporation.
Now suppose it's General Motors.
Mr. Olson: --Well, General Motors may be smaller than the client that we are representing.
Justice Breyer: I'd just like to get -- I want to get an answer to the question.
Mr. Olson: Yes, I think--
Justice Breyer: Yes.
Mr. Olson: --that to the extent that it--
Justice Breyer: Okay.
Now then, my question that I'm driving towards is: Since General Motors can in your view be forbidden to have our film of 90 minutes vote for Smith, vote for Smith, vote for Smith, or vote against Jones, vote against Jones, vote against Jones, how is this film, which I saw -- it is not a musical comedy.
What -- how does this film vary from my example, and why does the variance make a difference?
Mr. Olson: --The difference is: It's exactly what the Court was describing in Wisconsin Right to Life.
It is a 90 -- it is -- it informs and educates, which is what the Court said, or the Chief Justice's opinion, the controlling opinion said, was the mark of an issue communication.
And as this Court said--
Justice Ginsburg: Mr. Olson, I thought you conceded in the -- at least as I read your reply brief, that you were no longer saying this is about an issue unrelated to any election.
I thought you said that this was a 90-minute movie
"concerning the qualifications, character, and fitness of a candidate for the Nation's highest office. "
And that's just what Wisconsin Right to Life was not.
It was not about the character, qualifications, and fitness of either of the Senators.
Mr. Olson: --What the -- what the Court said in Wisconsin Right to Life was that the distinction between an issue -- issue advocacy and campaign advocacy dissolves upon practical application.
This is exactly what the Court was talking about there.
Justice Ginsburg: But didn't the Court there say this is not about character, qualifications, and fitness?
Mr. Olson: --Yes, it did, Justice Ginsburg, but what my point is: That there isn't just two boxes in the world of communications about public issues, one box for so-called issues and one box for campaign advocacy.
That's what I think the Court meant when it said, not just in Wisconsin Right to Life but in earlier cases, that the distinction dissolves upon application.
Justice Souter: But no matter how many boxes we have, doesn't this one fall into campaign advocacy?
I mean, I've got the government's brief open at -- open at pages 18 to 19 with the quotations: She will lie about anything.
She's ruthless, cunning, dishonest, do anything for power, will speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief.
I mean, this sounds to me like campaign advocacy.
Mr. Olson: It -- what -- what the court was talking about and as Justice Kollar-Kotelly talked about is broadcast advertising, these 10-minute -- 10-second, 30-second, 60-second bursts of communication that are -- that are the influence in elections.
Justice Breyer: I want to get the answer to what I was asking.
Justice Souter: But it -- it seems to me, the answer to Justice Breyer's question: This is a don't vote for Jones.
Mr. Olson: This is a long discussion of the record, qualifications, history, and conduct of someone who is in the political arena, a person who already holds public office, who now holds a different public office, who, yes, at that point, Justice Souter, was running for office.
But the fact is that what could the individual making a -- as I said, the Reporters Committee for the Right to Life said this is indistinguishable from something that is on the public media every day, a long discussion.
It might be -- what you're suggesting is that unless it's somehow evenhanded, unless it somehow says -- which would be viewpoint discrimination or prevention of viewpoints, which is the safe harbor that the government has written into its so-called safe harbor, if you don't have a point of view, you can go ahead and express it.
Justice Breyer: No, that isn't -- that isn't the suggestion.
The suggestion I was going to, or trying to get to, is we know you can't just say vote against Smith, vote against Smith, vote against Smith.
Now, I wanted to know the difference between that and a film that picks out bad things that people did -- no good ones, just bad ones the candidate did.
And then we have another film that picks out just good things candidates do.
And so candidates run films that show the good things they do, and then someone else shows the bad things they do.
Now, why is that not the same as vote against Smith?
Though I grant you, it's more intelligent.
It's more informative.
It's even better electioneering.
So we're after electioneering.
Why doesn't that fall within the forbidden category?
Mr. Olson: The government has the burden to prove -- there's a compelling governmental interest narrowly tailored, Justice Breyer, because all kinds of things of the type that you're talking about are permissible if your name is General Motors -- I, mean if your name is General Electric rather than General Motors, if your name is Disney, if your name is George Soros, if your name is National Public Radio.
What you're suggesting is that a long discussion of facts, record, history, interviews, documentation, and that sort of thing, if it's all negative, it can be prohibited by -- and it's a felony.
You can go to jail for 5 years for sharing that information with the American public, or if it's all favorable, you can go to jail.
But if you did half and half, you couldn't.
Justice Breyer: I -- I guess it's the same as if you were to say, you know, I think Smith is a great guy.
I'm sharing information.
And what I don't see is if you agree that we could ban the commercial that says, I see Smith is a great guy, why is it any different to supplement that with the five best things that Smith ever did?
Mr. Olson: Because -- because of the First Amendment.
Congress shall make no law abridging the freedom of speech.
When -- when the government -- when this Court has permitted that to happen, it has only done it in the most narrow circumstances for a compelling governmental interest.
Justice Kennedy: But I -- I guess what -- what Justice Breyer is asking is -- I have the same question.
If we concede -- and at the end of the day you might not concede this, but if we take this as a beginning point, that a short, 30-second, 1-minute campaign ad can be regulated, you want me to write an opinion and say, well, if it's 90 minutes, then that's different.
I -- it seems to me that you can make the argument with 90 -- the 90 minutes is much more powerful in support or in opposition to a candidate.
That's I -- that's the thrust of the questioning.
Mr. Olson: I understand that, Justice Kennedy, and it is difficult.
But let me say that the record that you were considering in McConnell -- and I specifically invite, as I did before, page -- the Court's attention to 646 of this -- of the district court's opinion, which specifically said the government and Congress was concerned about these short, punchy ads that you have no choice about seeing, and not concerned about a thorough recitation of facts or things that you would have to make an affirmative decision to opt into.
And the reason why it's difficult is that we are talking about an infinite variety of ability of people to speak about things that matter more to them than anything else, who will be--
Chief Justice Roberts: Counsel, I think you have kind of shifted your focus here from the difference between a 10-second ad and a 90-minute presentation and how that presentation is received, whether it's over the normal airwaves or on this Video On Demand.
What -- what is the distinction between the 10-second commercial and, say, the 90-minute infomercial?
Mr. Olson: --The thing -- I think it's -- it's pointed out specifically in your opinion, controlling opinion, for Wisconsin Right to Life.
That which informs and educates and may seek to persuade is something that is -- is on the line of being permissible.
The government hasn't established -- never did try to establish -- I did shift -- I didn't shift but all of these are factors.
It's who's doing the speaking--
Justice Scalia: You can educate in 30 seconds.
I mean in -- in a 30-second ad you present just one of these criticisms of the candidate instead of lumping all of them together for 90 minutes.
Mr. Olson: --The point, I think--
Justice Scalia: Doesn't that educate?
Mr. Olson: --The point, I think, Justice Scalia, is, yes, you can educate in 10 seconds, you can educate in 30 seconds.
But what -- what the Court was trying to do -- what Congress was trying to do is get at the things that were most potentially corruptive.
Justice Scalia: Wait, are you making a -- a statutory argument now or a constitutional argument?
What Congress was trying to do has nothing to do, it seems to me, with the constitutional point you're arguing.
Mr. Olson: The government makes the point that it established a voluminous record of evidence.
Both Congress had before it and this Court had before it a voluminous volume of evidence because it had the burden of proving that something was really bad with these -- these types of advertisements.
And what the -- what the Court did is say, well, okay -- in McConnell -- yes, there is a substantial burden that the government met that these types of communications -- not the Internet, not books, not other types of things -- are really bad enough that the government could pick those out, and it has narrowly tailored its solution to that problem by prohibiting those things.
And the government talks about this today in its brief, the things that Congress felt were the most acute problems.
Justice Scalia: So you're making a statutory argument now?
Mr. Olson: --I'm making a--
Justice Scalia: You're saying that this -- this isn't covered by it.
Mr. Olson: --Yes, I am making a statutory argument in the sense that you will construe the statute in the way that doesn't violate the Constitution.
The Constitution, as -- as the Court said in Wisconsin Right to Life, gives -- ties to the speaker, errs on the side of permitting the speech, not prohibiting the speech.
And so all of those things may be statutory arguments, Justice Scalia, but they are also constitutional arguments.
And in response to every one of these questions, the government has the burden of proving this sort of speech, which the Reporters say is indistinguishable -- they're the kind of information that news media puts out all the time, not--
Chief Justice Roberts: So -- so this argument doesn't depend upon whether this is properly characterized as express -- the functional equivalent of express advocacy?
Your contention is that even if it is, that because it wasn't in the factual record in McConnell or before Congress, it is a type of functional -- it is a type of express advocacy that's not covered by the Act?
Mr. Olson: --I don't think, Chief Justice Roberts, that it is remotely the functional equivalent of express advocacy, because what the Court and Congress was thinking about with respect to express advocacy was short, punchy things that you have no--
Chief Justice Roberts: Well, that's -- that's why I'm trying to figure out, the distinction in your argument.
I mean, if we think that this is the functional equivalent of express advocacy, are you contending that it is nonetheless not covered in light of the record before the Court in McConnell and before Congress?
Mr. Olson: --I -- I think I would agree with that, but I would also say that the -- the idea of the functional equivalent of express advocacy is a very magic word problem that this Court has struggled with in McConnell and in -- in each of the cases.
I would -- I said at the beginning that this is an incomprehensible prohibition, and I -- and my -- I think that's demonstrated by the fact that since 2003 this Court has issued something close to 500 pages of opinions interpreting and trying to apply the First Amendment to Federal election law.
And I counted 22 separate opinions from the Justices of this Court attempting to -- in just the last 6 years, attempting to figure out what this statute means, how it can be interpreted.
Chief Justice Roberts: Well, that's because it's mandatory appellate jurisdiction.
I mean, it's -- you don't have a choice.
Mr. Olson: --There would be fewer -- there would be fewer opinions.
I guess my point is that--
Justice Stevens: And maybe those cases presented more difficult issues than this one.
Mr. Olson: --I think this presents a much easier issue, Justice Stevens, because this is the type of -- if there is anything that the First Amendment is intended to protect in the context of elections that are occurring -- which, by the way, occur 4 years running, but the last election, presidential election, occurred throughout the entire 2008 -- if the American people need to have that kind of information.
And the statute is both overly broad because if it was a hotel ad, if it was a hotel saying Senator Clinton stayed here or Senator McCain stayed here, it would be prohibited because it was a hotel saying so, even though it really had nothing to do with the election.
If it is -- but it's -- if it's a corporation that put together an analysis of the earmark positions of each of the senatorial candidates -- most all of the candidates were running from the Senate, they all had this -- these issues where they may have voted or not against earmarks, that would be--
Justice Ginsburg: But, Mr. Olson, this is -- I think you were right in conceding at the beginning, this is not like the speech involved in Wisconsin Right to Life.
This is targeted to a specific candidate for a specific office to be shown on a channel that says Election '08, that tells the -- the viewer over and over again what -- just for example, it concludes with these are things worth remembering before you go in potentially to vote for Hillary Clinton.
Now, if that isn't an appeal to voters, I can't imagine what is.
Mr. Olson: --Yes, Justice Ginsburg, I understand your point.
There is much in there that if you saw it, you would form an opinion with respect to how you might want to vote.
You might -- it might form a different -- you might form all kinds of different opinions.
But it was -- it was an analysis of the background record and history and qualifications of someone running for president.
Of course I concede that.
But what is the -- what is the maker of a movie to take out in order to prevent that from happening?
I understand from some of the questions that if it was more evenhanded -- if it said, well, this candidate did this, but this candidate did this or this candidate was born in the Panama Canal Zone and this candidate was born in Hawaii, and that affects whether or not they are natural-born citizens or not, and it was more evenhanded, would that then not be a felony?
Justice Souter: As you -- as you've said yourself, as you pointed out, there -- there is a point at which there is no nonporous border between issue discussion and candidate discussion.
But I think the -- the problem that -- that Justice Ginsburg is having, that I'm having, and others is that it does not seem to me that with the quotations we're dealing with here -- as Justice Breyer said, it's not a musical comedy.
I think we -- we have no choice, really, but to say this is not issue advocacy; this is express advocacy saying don't vote for this person.
And if that is a fair characterization, the difference between 90 minutes and 1 minute, either for statutory purposes or constitutional purposes, is a distinction that I just cannot follow.
Mr. Olson: Well, it is a distinction that Congress was concerned about, and it's a distinction that's all over the record--
Justice Souter: You say that -- why -- what -- what is your basis for saying that Congress is -- is less concerned with 90 minutes of don't vote for Clinton than it was with 60 seconds of don't vote?
Mr. Olson: --Because -- because the record in Congress and the record in this Court is that those types of advertisements were more effective because they came into your home--
Justice Souter: They are the characteristic advertisement.
There is no question about that.
That is the paradigm case.
I agree with you.
But I don't see how you -- you then leap-frog from saying -- from saying that is the paradigm case to saying that this never covers anything but the paradigm case when the only distinction is time.
Mr. Olson: --The -- the -- I think the -- what -- what Congress was concerned about is the most severe and the most acute problem, as Justice Kollar-Kotelly said, which everyone acknowledges was the problem Congress sought to address with BCRA.
It's not just that, however.
The point that you just made about a nonporous border, it is the government's responsibility to the extent that you can't figure out how evenhanded you must be or what you must take out of your communication in order not to go to jail for airing it, it is the functional equivalent -- if everything is the functional equivalent -- if it mentions a candidate during an election, which is what the government says, it's the functional equivalent of a prior restraint, because you don't dare--
Justice Scalia: Mr. Olson, I -- I think we've been led astray by -- by the constant reference to what Congress intended.
As I understood your point, it was not -- it was not that, well, one is covered by the statute and the other isn't, but it is that one is covered by the Constitution and the other isn't.
And it may well be that -- that the kind of speech that is reflected in a serious 90-minute documentary is entitled to greater constitutional protection.
And it may well be that the kind of speech that is not only offered but invited by the listener is entitled to -- is entitled to heightened First Amendment scrutiny, which is -- which is what this is since you have pay per view and--
Mr. Olson: --I agree with that completely, Justice Scalia.
Mr. Chief Justice, if I may reserve the remainder of my time.
Chief Justice Roberts: Thank you, counsel.
ORAL ARGUMENT OF MALCOLM L. STEWART ON BEHALF OF THE RESPONDENT
Mr. Stewart: Mr. Chief Justice, and may it please the Court: The lead opinion in Wisconsin Right to Life didn't just use the term 2667 of volume 127 of the Supreme Court Reporter, the plurality or the lead opinion stated:
"In light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. "
So the functional equivalence test doesn't depend on the length of the advertisement or the medium in which the advertisement--
Chief Justice Roberts: Well, the length of the advertisements wasn't remotely at issue in either Washington Right to Life or McConnell or before Congress when they passed this law.
Mr. Stewart: --Well, certainly Congress considered a variety of evidence bearing on campaign practices that had been undertaken in the past.
They were primarily -- most of the examples on which they focused were 30-second and 60-second advertisements.
It's certainly been a recurring phenomenon in the past that candidates would air, for instance, 30-minute infomercials.
Chief Justice Roberts: Any discussion in either McConnell -- any citation either in McConnell or the Congressional Record to those types of documentaries?
Mr. Stewart: I'm not sure about the citation; I'm not aware of any citation in McConnell or the Congressional Record, but it was certainly a known phenomenon.
And I think the real key to--
Chief Justice Roberts: Well, I mean, how do we know it was a known phenomenon in terms of the evolution of the statute and the decision of this Court upholding it if there's no reference to it?
Mr. Stewart: --Well, the real -- I think the real key to ascertaining Congress's intent is to look to the definition of electioneering communication that Congress enacted into the statute, and that definition requires that the communication be a broadcast, cable, or satellite communication in order to qualify as an electioneering communication, and that it be aired within a certain proximity to a Federal election, and that in the case of an--
Chief Justice Roberts: So -- so if Wal-Mart airs an advertisement that says we have candidate action figures for sale, come buy them, that counts as an electioneering communication?
Mr. Stewart: --If it's aired in the right place at the right time, that would be covered.
Now, under this Court's decision in Wisconsin Right to Life, it would be unconstitutional as applied to those advertisements, because those advertisements certainly would be susceptible of a reasonable construction--
Justice Alito: Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?
What's your answer to Mr. Olson's point that there isn't any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book?
Would the Constitution permit the restriction of all of those as well?
Mr. Stewart: --I think the -- the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life.
Those could have been applied to additional media as well.
And it's worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering which have been limited by this Court's decisions to express advocacy--
Justice Alito: That's pretty incredible.
You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?
Mr. Stewart: --I'm not saying it could be banned.
I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.
Justice Alito: Well, most publishers are corporations.
And a -- a publisher that is a corporation could be prohibited from selling a book?
Mr. Stewart: Well, of course, the statute contains its own media exemption or media--
Justice Alito: I'm not asking what the statute says.
The government's position is that the First Amendment allows the banning of a book if it's published by a corporation?
Mr. Stewart: --Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right.
That question is obviously not presented here.
The -- the other two things--
Justice Kennedy: Well, suppose it were an advocacy organization that had a book.
Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/90-day period -- the 60/30-day period?
Mr. Stewart: --If the book contained the functional equivalent of express advocacy.
That is, if it was subject to no reasonable interpretation--
Justice Kennedy: And I suppose it could even -- is it the Kindle where you can read a book?
I take it that's from a satellite.
So the existing statute would probably prohibit that under your view?
Mr. Stewart: --Well, the statute applies to cable, satellite, and broadcast communications.
And the Court in McConnell has addressed the--
Justice Kennedy: Just to make it clear, it's the government's position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite, it's under -- it can be prohibited under the Constitution and perhaps under this statute?
Mr. Stewart: --It -- it can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use -- to raise funds to publish the book using its PAC.
Chief Justice Roberts: If it has one name, one use of the candidate's name, it would be covered, correct?
Mr. Stewart: That's correct.
Chief Justice Roberts: If it's a 500-page book, and at the end it says, and so vote for X, the government could ban that?
Mr. Stewart: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provisions.
Chief Justice Roberts: No, I'm talking about under the Constitution, what we've been discussing, if it's a book.
Mr. Stewart: If it's a book and it is produced -- again, to leave -- to leave to one side the question of--
Chief Justice Roberts: Right, right.
Mr. Stewart: --the possible media exemption, if you had Citizens United or General Motors using general treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this--
Chief Justice Roberts: --No, take my hypothetical.
It doesn't say at the outset.
If funds -- here is -- whatever it is, this is a discussion of the American political system, and at the end it says vote for X.
Mr. Stewart: --Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.
Chief Justice Roberts: And if they didn't, you could ban it?
Mr. Stewart: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.
Justice Breyer: I wonder if that's -- I mean, I take it the answer to the question, can the government ban labor unions from saying we love this person, the corporations, we love them, the environmentalists saying we love them, is of course the government can't ban that.
The only question is, who's paying for it.
And they can make a determination of how much money the payors can pay, but you can't ban it.
Mr. Stewart: That's correct, and they--
Justice Breyer: All right.
If that's correct, then I take it the interesting question here would be -- I don't know if it arises in this case.
Suppose there were a kind of campaign literature or -- or advocacy that either a corporation had to pay for it, it couldn't pay for it through the PAC because for some reason -- I don't know -- the PAC -- and there's no other way of getting it to the public.
That would raise a constitutional question, wouldn't it?
Mr. Stewart: --It would raise a constitutional--
Justice Breyer: Is that present in this case?
Mr. Stewart: --It's not present in the case.
I don't think it would raise a difficult constitutional question because presumably if the reason the corporation couldn't do it through the PAC -- the only reason I could think of is that it couldn't find PAC-eligible donors who were willing to contribute for this speech.
And if that's the case, the corporation would -- could still be forbidden to use its general treasury.
Justice Breyer: I don't know about that.
But I guess I would be worried if in fact there was some material that couldn't get through to the public.
I would be very worried.
But I don't think I have to worry about that in this case, do I?
Mr. Stewart: That's correct, both because the question isn't presented here and because Congress--
Chief Justice Roberts: No, but if we accept your constitutional argument, we're establishing a precedent that you yourself say would extend to banning the book, assuming a particular person pays for it.
Mr. Stewart: --I think the Court has already held in -- both in Austin and in McConnell, that Congress can or that Congress or State legislatures can prohibit the use of corporate treasury funds for express advocacy.
Chief Justice Roberts: To write a book, to pay for somebody to write a book?
Mr. Stewart: Well, in MCFL, for instance, the communication was not a book, but it was a newsletter, it was written material; and the Court held this was express advocacy for which the use of corporate treasury funds would ordinarily be banned.
It held that because of the distinctive characteristics of the particular corporation at issue in that case, MCFL was entitled to a constitutional exemption.
But I think the clear thrust of MCFL is that the publication and dissemination of a newsletter containing express advocacy could ordinarily be banned with respect to the use of corporate treasury funds.
Chief Justice Roberts: Not just a newsletter.
Suppose a sign held up in Lafayette Park saying vote for so and so.
Under your theory of the Constitution, the prohibition of that would be constitutional?
Mr. Stewart: Again, I do want to make clear that if by "prohibition" you mean ban on the use of corporate treasury funds, then, yes, I think it's absolutely clear under Austin, under McConnell that the use of corporate treasury funds could be banned if General Motors, for instance, wanted to produce--
Justice Scalia: And -- and you -- you get around the fact that this would extend to any publishing corporation by saying that there is a media exemption because the Constitution guarantees not only freedom of speech but also of the press?
Mr. Stewart: --Well, there has always been--
Justice Scalia: But does "the press" mean the media in that constitutional provision?
You think in 1791 there were -- there were people running around with fedoras that had press -- little press tickets in it, "Press"?
Is that what "press" means in the Constitution?
Doesn't it cover the Xerox machine?
Doesn't it cover the -- the right of any individual to -- to write, to publish?
Mr. Stewart: --Well, I think the difficult constitutional question of whether the general restrictions on use of corporate treasury funds for electioneering can constitutionally be applied to media corporations has never had to be addressed because the statutes that this Court has reviewed have--
Justice Scalia: Well, I don't see any reason why it wouldn't.
I'm saying there's no basis in the text of the Constitution for exempting press in the sense of, what, the Fifth Estate?
Mr. Stewart: --In -- in any event, the only question this Court would potentially need to decide in this case is whether the exemption for media companies creates a disuniformity that itself renders the statute unconstitutional, and the Court has already addressed that question in McConnell.
The claim was made that because media corporations were exempt, there was inequality of treatment as between those and other corporations.
And Congress said no, Congress -- I mean, this Court said no, Congress can protect the interests of the media and of the public in receiving information by drawing that line.
With respect to your--
Justice Souter: To point out how far your argument would go, what if a labor union paid an author to write a book advocating the election of A or the defeat of B?
And after the manuscript was prepared, they then went to a commercial publisher, and they go to Random House.
Random House says, yes, we will publish that.
Can the -- can the distribution of that be in effect subject to the electioneering ban because of the initial labor union investment?
Mr. Stewart: --Well, exactly what the remedy would be, whether there would be a basis for suppressing the distribution of the book, I'm not sure.
I think it's clear under--
Justice Souter: Well, does it -- does it come within electioneering because of the initial subvention to the author?
Mr. Stewart: --It wouldn't be an electioneering communication under BCRA because BCRA wouldn't apply to the print media.
Now, it would potentially be covered by the--
Justice Souter: We're -- we're talking about how far the constitutional ban could go, and we're talking about books.
Mr. Stewart: --Well, I -- we would certainly take the position that if the labor union used its treasury funds to pay an author to produce a book that would constitute express advocacy, that that--
Justice Souter: And the book was then taken over as a commercial venture by Random House?
Mr. Stewart: --The labor union's conduct would be prohibited.
The question of whether the book that had already been--
Justice Souter: No, but prohibition only comes when we get to the electioneering stage.
Mr. Stewart: --That's correct.
Justice Souter: Okay.
Mr. Stewart: The question whether the--
Justice Souter: So for the -- for the labor union simply to -- to hire -- is there -- is there an outright violation when the labor union -- I guess this is a statutory question: Is there an outright violation when the labor union comes up with the original subvention?
Mr. Stewart: --I guess I would have to study the Federal Election Campaign Act provisions more closely to see whether they--
Justice Souter: Let's assume for the sake of argument that they would not be.
The subvention is made, the manuscript is prepared, Random House then publishes it, and there is a distribution within the -- what is it -- the 60-day period.
Is the -- is the original subvention (a) enough to bring it within the prohibition on the electioneering communication, and (b) is that constitutional?
Mr. Stewart: --Well, again, it wouldn't qualify as an electioneering communication under BCRA because that statutory definition only applies--
Justice Souter: You're -- you're right.
I stand corrected.
If the statute covered that as well, if the statute covered the book as well.
Mr. Stewart: --I think the use of labor union funds, as part of the overall enterprise of writing and then publishing the book, would be covered.
Justice Souter: That would be enough to bring it in, and--
Mr. Stewart: And I -- I don't--
Justice Souter: --the Constitution?
Mr. Stewart: --And I think it would be constitutional to forbid the labor union to do that.
Whether it would--
Chief Justice Roberts: Again, just to follow up, even if there's one clause in one sentence in the 600-page book that says, in light of the history of the labor movement, you should be careful about candidates like John Doe who aren't committed to it?
Mr. Stewart: --Well, whether in the context of a 600-page book that would be sufficient to make the book either an electioneering communication or express advocacy--
Chief Justice Roberts: Well, it does by its terms, doesn't it?
Published within 60 days.
It mentions a candidate for office.
What other qualification is there?
Mr. Stewart: --Well, I think the Court has already crossed that bridge in Wisconsin Right to Life by saying the statute could constitutionally be applied only if it were the functional equivalent of express advocacy, and -- so that would be the -- and we accept that constitutional holding.
That would be the relevant constitutional question.
I wanted to return for a second, Justice Alito, to a question you asked about the purported interchangeability of the Internet and television.
And it's certainly true that -- that a growing number of people are coming to experience those media as essentially interchangeable, but there are still a lot of people either who don't have computers at all or who use their televisions and their computers for fundamentally different purposes.
And I think it's evident that Citizens United perceived the two media to be distinct because it was willing to pay $1.2 million to a cable service in order to have the film made available on -- by Video On Demand, when Citizens United could have posted the film on its own Web site, posted the film on YouTube, and could have avoided both the need to make the payment and the potential applicability of the electioneering communications provisions.
Justice Alito: If they had done either of the things you just mentioned, putting it on its Web site or putting it on YouTube, your position would be that the Constitution would permit the prohibition of that during the period prior to the primary or the election?
Mr. Stewart: Our position is not that the Constitution would permit it.
Our position is that BCRA wouldn't prohibit it because those are not covered media.
Justice Alito: Would the Constitution -- if -- if BCRA -- if Congress in the next act covered that in light of advances in the Internet, would the Constitution permit that?
Mr. Stewart: --Yes, I mean, the Court in McConnell upheld on the electioneering communications on their face, and this Court -- a majority of this Court in Wisconsin Right to Life said those provisions are constitutional as applied--
Justice Scalia: I -- I'm a little disoriented here, Mr. Stewart.
We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of the press?
That's what we're interpreting here?
Mr. Stewart: --That's correct.
Justice Scalia: Okay.
Mr. Stewart: But, again, this -- the Court obviously has grappled in the past with the question of how to apply that provision to use of corporate treasury funds either for express electoral advocacy or its functional equivalent--
Justice Kennedy: In -- in this case, Mr. Stewart, I take it -- correct me if I'm wrong -- that you think the distinction the Petitioner draws between the 90-minute film and the -- and the short 30-second or 1-minute ad is a baseless distinction?
Mr. Stewart: --It is of no constitutional significance.
Congress certainly could have drafted the electioneering communication definition--
Justice Kennedy: So if -- if we think that the application of this to a 90-minute film is unconstitutional, then the whole statute should fall under your view--
Mr. Stewart: --Well, I think--
Justice Kennedy: --because there's no distinction between the two?
Mr. Stewart: --Well, I think the Court has twice upheld the statute as applied to communications that are the functional equivalent of express advocacy.
Justice Kennedy: But I'm -- I'm saying that if we -- if we think that this is -- that this film is protected, and you say there's no difference between the film and the ad, then the whole statute must be declared void.
Mr. Stewart: --It would depend on the ground under which you reached the conclusion that the film was protected.
If you disagreed with our submission and said there is a constitutional difference between 90-minute films and 60-second advertisements, then obviously you could draw that constitutional line.
If you concluded that they're all the same but they're all protected, then obviously we would lose both cases.
But, again, you would have to--
Justice Kennedy: But you want us to say they're both the same?
You want -- you argue that they're both the same.
Mr. Stewart: --That -- that's correct.
Now, it may be the case -- it may be rarer to find a 90-minute film that is so unrelenting in its praise or criticism of a particular candidate that it will be subject to no reasonable interpretation other than to vote for or against that person, but when you have that, as I think we do here, there's no constitutional distinction between the 90-minute film and the 60-second advertisement.
And we would stress with respect to the film that what makes this, in our view, an easy case is not simply that the film repeatedly criticizes Hillary Clinton's character and integrity.
The clincher is that the film repeatedly links Senator Clinton's purported character flaws to her qualifications for president.
Justice Kennedy: But just from the standpoint of art and literature, that's very odd.
Suppose you have a film which is quite moving with scenery and music and magnificent acting, and a subtle message.
That may be far more effective in advocating, and everyone knows that.
Mr. Stewart: And that--
Justice Kennedy: Everyone knows that.
Mr. Stewart: --That's essentially the argument that a majority of this Court rejected in Wisconsin Right to Life; that is, that that was part of the basis on which Congress enacted BCRA, part of the reason that it wanted to establish a purely objective test based on naming an identified candidate and airing in proximity to the election.
Congress recognized that in many situations the most effective advocacy is the subtler advocacy.
And the -- the lead opinion in Wisconsin Right to Life said -- I think recognized that it will foreseeably be the case that corporations will craft advertisements that are, in fact, intended to influence Federal elections but that are sufficiently subtle and opaque that they won't constitute the functional equivalent of express advocacy.
And -- and the lead opinion simply said that's the price that we have to pay in order to ensure that an unduly broad range of corporate speech is not restricted.
And we accept that holding, but in this case what we have, people may feel -- is not subtle.
People may feel that because it's not subtle, it's less likely to be effective.
But the Court's decisions have never drawn a constitutional line between advocacy that is likely to be effective and advocacy that is not.
Clearly, if this were express advocacy -- I think clearly, if the -- the narrator had said in the first 30 seconds of the film: A Hillary Clinton presidency would pose a danger to the country, it's important for all citizens to vote against Hillary Clinton, what follows are extended analyses of episodes in her past that reflect Hillary Clinton's unsuitability for that office.
And if then in the last 89 minutes of the film the filmmaker had made no overt reference to the upcoming election but had simply given a negative portrayal of Hillary Clinton, the person, that would be express advocacy that would be proscribable even without regard to BCRA.
So that if--
Chief Justice Roberts: Even though that type of case was never presented to the Court in McConnell and was never presented to Congress when it considered BCRA?
Mr. Stewart: --Well, it's not clear whether it was presented to Congress or not.
It is certainly true that it was not the focus of congressional attention.
But we know from the definition of "electioneering communication" what attributes Congress wanted to make relevant to the coverage determination.
That is, it chose to restrict this to broadcast, cable, and satellite communications and to leave out the print media.
It chose to restrict it to advertisements or other communications that were aired within a specific proximity to the election.
If it had been unconcerned with communications over a certain length, it could certainly have made that part of the statutory definition, but it chose not to do that.
Justice Ginsburg: This film has been compared to 911> ["], which had the pervasive message that President Bush was unsuited to be President.
And so if that film had been financed out of the corporate -- a corporation's general treasury funds and put on an election channel, that would similarly be banned by the statute.
Mr. Stewart: I am afraid I am not familiar enough with that film to know whether it would have constituted -- to -- to make an informed judgment about whether that would have constituted the functional equivalent of express advocacy under Wisconsin Right to Life.
And, of course, the 2004.
But I think--
Justice Scalia: Mr. Stewart, do you think that there's a possibility that the First Amendment interest is greater when what the government is trying to stifle is not just a speaker who wants to say something but also a hearer who wants to hear what the speaker has to say?
I mean, what's somewhat different about this case is that, unlike over-the-air television, you have a situation where you only get this -- this message would only air -- if somebody elects to hear it.
So you really have two interested people, the speaker and the listener who wants to -- who wants to get this.
Isn't that a somewhat heightened First Amendment interest than just over-the-air broadcasting of advertising which probably most listeners don't want to hear?
Mr. Stewart: --Well, I think -- I think the -- first of all, I think if we had tried to make the argument in McConnell that the BCRA provisions, or -- or in any other case, that the BCRA provisions are constitutional as applied to 30 or 60-second advertisements because they are defensible means of protecting listeners who, by hypothesis, don't want to hear the message in the form of a captive audience, I don't think we would have gotten very far.
I think it's certainly true that people have a wide variation of attitudes towards campaign advertisements.
Some of them find them irritating, and, of course, they can hit the mute button or -- or leave the room, or in the case of people who use TiVo or VCRs can simply fast-forward through them.
But the whole premise of the congressional regulation and the whole premise of the corporation's willingness to spend these massive amounts of money was that enough people will be interested in the advertisements that they will ultimately have an electoral effect.
And -- and so if you compare the -- the film to the advertisement, the advertisements, in one sense, you could say are a less effective mechanism because a lot of the people who reach them are unwilling listeners or uninterested.
But, on the other hand, they're more effective because they reach more people.
The -- the flip side is that with the film you reach a smaller audience.
It's certainly a more limited group of people who will sign up to receive the movie, but they are more interested in the message.
I don't think you can operate on the hypothesis that there is no--
Justice Scalia: You're talking about effectiveness.
That wasn't my point.
My point was the -- the seriousness of the First Amendment interest that's being impinged where -- where you have both somebody who wants to speak and someone who affirmatively wants to hear what he has to say, and the government says, no, the two of you can't do this.
Mr. Stewart: --Well, I think it was--
Justice Scalia: Don't you think that's somewhat worse than the government just saying to somebody who wants to speak, no, you can't speak?
Mr. Stewart: --I think it would be impossible to divide media up in that way based on the relative likelihood that the recipient of the message will want to hear it.
With respect to the -- the newsletters in MCFL, for instance, on the one -- in many instances, they were made available in public places.
They were also mailed to a variety of people.
You could say--
Justice Scalia: I am not saying will -- will want.
I mean you have a situation here where you don't get it unless you take the initiative to subscribe.
I'm not -- I'm not trying to figure out person by person who wants to hear it and who doesn't.
Here you have a medium in which somebody listens only if that person wants to listen.
So the -- the person speaking wants to speak, and the person hearing wants to hear.
It seems to me that's a stronger -- a stronger First Amendment interest.
Mr. Stewart: --Well, the potential viewers in this case had other alternatives if they wanted to see the film.
The film was available--
Justice Ginsburg: Was -- was this issue aired before the three-judge court, the distinction between, say, putting something on network TV and putting something on View On Demand that the listener has to opt into?
Mr. Stewart: --No.
Indeed, the -- the appellant in its complaint simply alleged affirmatively that his communication, if aired on DVD -- I mean if aired on VOD would fall within the statutory definition of "electioneering communication".
Chief Justice Roberts: Counsel, before you run out here, can I -- we haven't talked about the disclosure requirements yet.
You understand the test to be that disclosure is not required if the names of those disclosed -- if those people would be reasonably subject to reprisals?
Mr. Stewart: That's correct.
This Court has recognized a constitutional exemption for two disclosure requirements in cases where disclosure would have a reasonable likelihood of leading to reprisal.
Chief Justice Roberts: How -- how do we apply that test?
Is it inconceivable to you here that people contributing to such a clearly anti-Clinton advertisement are not going to be subject to reprisals?
Mr. Stewart: It seems unlikely that reprisals would occur because Citizens United -- this is obviously a new film, but it is of a piece with communications that Citizens United has engaged in.
Chief Justice Roberts: That doesn't work, because maybe they are going to change the nature of the documentaries that they fund, or somebody who gave a contribution 5 years ago may decide, boy, I don't like what they're doing.
I'm not going to give anymore.
Mr. Stewart: I guess the point I was going to--
Chief Justice Roberts: --The fact that they've disclosed in the past by compulsion of law doesn't seem to answer the question of whether they are going to be subject to reprisals.
Mr. Stewart: --Well, the point was that they have disclosed in the past and have provided no evidence of reprisals.
But I think the Court's decisions are clear that the burden is on the organization to show a reasonable likelihood, at least to -- to set the -- the ball in motion.
And the three-judge district court here said essentially what this Court said in McConnell with regard to a variety of plaintiffs who included Citizens United.
That is, the Court said in McConnell and the three-judge district court here that the plaintiffs had made vague allegations of the general possibility of reprisals but had offered no concrete evidence that their own members--
Chief Justice Roberts: But that seems to me you're saying they've got to wait until the -- the horse is out of the barn.
You can only prove that you are reasonably subject to reprisals once you've been the victim of reprisals.
Mr. Stewart: --Well, I think the alternatives would be to say that disclosure requirements are categorically unconstitutional, which would be an extreme departure from this Court's prior precedents or--
Chief Justice Roberts: That's saying -- that's saying that the test in McConnell is unworkable, if you say the alternative is to say they are categorically--
Mr. Stewart: --No.
I mean I think the -- if the -- we think the test in McConnell is workable; that is, leave it up to the organization to establish particularized proof of a reasonable likelihood of reprisal.
If you were going to--
Chief Justice Roberts: --If the Boy Scouts run an ad and they have -- they're subject to disclosure, are the donors who support that ad reasonably subject to reprisals?
Mr. Stewart: --I mean, it would depend to some extent on the characteristics of the ad.
Probably not, but I think if the alternative -- the two alternatives to the approach that the Court has taken previously would be first to say these requirements are unconstitutional across the board, or the Court could say as applied to organizations that engage in especially intemperate or extreme speech of the sort that might seem more likely to subject its proponents to reprisal, the disclosure requirements are categorically unconstitutional there.
I think that would be itself an anomalous and counterproductive content-based distinction if the mere fact of the extremity of your speech insolated you from a constitutional -- from a requirement that would otherwise be constitutional.
Chief Justice Roberts: Before you sit down, any other?
Thank you, counsel.
Mr. Olson, you have four minutes remaining.
REBUTTAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONER
Mr. Olson: Thank you, Mr. Chief Justice.
It is unquestionably the case that the government takes the position that any form of -- of expressive advocacy can be prohibited if it's done by a corporation.
They say that on page 25 and 26 of their brief, whether it be books, yard signs, newspapers or -- or something printed -- in printed form, and it's only because Congress decided to address the most acute problem that they haven't -- Congress didn't go ahead and decide to do that, which we submit would raise very, very serious constitutional questions, the same type of constitutional questions that we are talking about here.
Justice Breyer: Well, I agree with you about that, but I thought what saves this -- many people thought it doesn't save it, it's -- the whole thing's unconstitutional, the whole Act.
That isn't what I thought.
So what saves this is of course you can't prohibit all those things.
What you do is put limitations on the payment for them, see that there are other ways of paying for it, say, through PACs, and then limit very carefully the media that are affected and the times for which they are affected.
Now, that's the statute before us, and it's I think you have to address.
Mr. Olson: --Precisely, and five Justices in Wisconsin Right to Life made the point that the PAC mechanism is burdensome and expensive.
There are briefs in this case that demonstrate how much it is.
And the -- and it's easier if you have lots of money, if you are a big corporation, and you can afford a PAC or you already have one.
So it's a burden on the least capable of communicating.
Justice Stevens: Mr. Olson, can I ask this -- this question?
Wisconsin Right to Life -- Judge Randolph thought the Chief Justice's opinion in that case was controlling in this case.
Do you think the Chief Justice's opinion in that case correctly stated the law?
Mr. Olson: --Of course.
Justice Scalia: Good answer.
Justice Stevens: I want to be sure because you're -- sometimes I don't think you're quite saying that.
But you do agree that that opinion is correct?
Mr. Olson: What I am saying is I -- we accept the Court's decision in Wisconsin Right to Life.
To the extent that the Court did not get to this type of documentary where the issue distinction, the false dichotomy between issues and candidates--
Justice Stevens: But you accept the test that was stated in his opinion?
Mr. Olson: --The -- the -- that no reasonable -- not reasonably susceptible to any other interpretation?
Of course we do, Justice Stevens, but we submit, a 90-minute discussion of various different issues are subject to all kinds of interpretation, and when you get a long exposition of issues that are important to the public and someone says -- the government says, well, it's going to be -- we can prohibit it, and by the way, the government says, well, when we mean "prohibit" we mean just you can't use your union -- or corporate treasury funds -- what they mean by "prohibit" is that they will put you in jail if you do it.
They will put you in jail for 5 years.
That means prohibited.
Now, what -- what we're getting at here, when -- when you're trying to make a 90-minute movie that discusses things that are important to the public during an election of the highest officer of the United States, many people will interpret that as critical; many people will interpret it as supportive; there are things all over the lot.
So it's subject to lots of different interpretations.
The other thing is I heard Justice -- I mean Mr. Stewart say that if there's one minute at the beginning, it doesn't happen -- it doesn't matter what the other 89 minutes are; we can prohibit it.
Well, where is the person making a movie who wants to address the American public about something that's important to the American public -- there isn't any question about that -- where does he edit his movie?
What does he leave on the drawing -- on the cutting-room floor so that he won't have to go to jail?
He won't dare take the chance.
Chief Justice Roberts: Thank you, counsel.
The case is submitted.
ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE APPELLANT
Chief Justice Roberts: We'll hear reargument this morning in Case 08-205, Citizens United v. The Federal Election Commission.
Mr. Olson: Mr. Chief Justice and may it please the Court: Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment's guarantee of free speech.
Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations, any union or any corporation.
The government claims it may do so based upon the Austin decision that corporate speech is by its nature corrosive and distorting because it might not reflected actual public support for the views expressed by the corporation.
The government admits that that radical concept of requiring public support for the speech before you can speak would even authorize it to criminalize books and signs.
This Court needs no reminding that the government when it is acting to prohibit, particularly when it is acting to criminalize, speech that is at the very core of the First Amendment has a heavy burden to prove that there is a compelling governmental interest that -- that justifies that prohibition and that the regulation adopted, in this case a criminal statute, is the most narrowly tailored necessary to accomplish that compelling governmental interest.
Justice Ginsburg: Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual?
A corporation, after all, is not endowed by its creator with inalienable rights.
So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?
Mr. Olson: What the Court has said in the First Amendment context, New York Times v. Sullivan, Rose Jean v. Associated Press, and over and over again, is that corporations are persons entitled to protection under the First Amendment.
Justice Ginsburg: Would that include--
Mr. Olson: Now, Justice--
Justice Ginsburg: --Would that include today's mega-corporations, where many of the investors may be foreign individuals or entities?
Mr. Olson: --The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.
Justice Ginsburg: Own many shares?
Mr. Olson: Pardon?
Justice Ginsburg: Nowadays there are foreign interests, even foreign governments, that own not one share but a goodly number of shares.
Mr. Olson: I submit that the Court's decisions in connection with the First Amendment and corporations have in the past made no such distinction.
Justice Ginsburg: Could they in your view, in the view that you are putting forth, that there is no distinction between an individual and a corporation for First Amendment purposes, then any mega-corporation, even -- even if most of the investors are from abroad, Congress could not limit their spending?
Mr. Olson: --I'm not -- I'm not saying that, Justice Ginsburg.
I'm saying that the First Amendment applies.
Then the next step is to determine whether Congress and the government has established a compelling governmental interest and a narrowly tailored remedy to that interest.
If the Congress -- and there is no record of that in this case of which I am aware.
Certainly the government has not advanced it in its briefs: That there is some compelling governmental interest because of foreign investment in corporations.
If there was, then the Court would look at, determine how serious is that interest, how destructive has it been to the process and whether the -- maybe the limitation would have something to do with the ownership of shares of a corporation or some--
Justice Scalia: Do you think Congress could prevent foreign individuals from funding speech in United States elections?
Mr. Olson: --The -- the--
Justice Scalia: Private individuals, foreigners who -- who want to--
Mr. Olson: --That's, of course, a different question.
I haven't studied it, Justice Scalia.
Justice Scalia: --Well, it's not different.
I asked it because I thought it was related to the question you were answering.
Mr. Olson: The fundamental point here is -- and let me start with this, and I think we should -- we should start with this, and the government hardly mentions this.
Justice Stevens: Before you do, Mr. Olson--
Mr. Olson: The language of the First Amendment, "Congress shall make"--
Justice Stevens: --Mr. Olson -- Mr. Olson, would you answer Justice Ginsburg's question yes or no?
Can the -- leaving aside foreign investors, can the -- can -- does the First Amendment permit any distinction between corporate speakers and individual speakers?
Mr. Olson: --I am not -- I'm not aware of a case that just--
Justice Stevens: I am not asking you that.
I meant in your view does it permit that distinction?
Mr. Olson: --My view is based upon the decisions of this Court and my view would be that unless there is a compelling governmental interest and a narrowly--
Justice Stevens: But if there is a compelling government -- can there be any case in which there is a different treatment of corporations and individuals in your judgment?
Mr. Olson: --I would not rule that out, Justice Stevens.
I mean, there may be.
I can't imagine all of the infinite varieties of potential problems that might exist, but -- but we would eventually come back to the narrow tailoring problem anyway.
What the government has done here is prohibit speech.
I don't know how many unions there are in this country, but there are something like 6 million corporations that filed tax returns in 2006.
Justice Alito: Well, Mr. Olson, do you think that media corporations that are owned or principally owned by foreign shareholders have less First Amendment rights than other media corporations in the United States?
Mr. Olson: I don't think so, Justice Alito, and certainly there is no record to suggest that there is any kind of problem based upon that.
And I come back to the language of the First Amendment: "Congress shall make no law".
Now, what this Court has repeatedly said is that there may be laws inhibiting speech if there is a compelling governmental interest and a narrowly tailored remedy.
But there is no justification for this.
I was going to say that 97 percent of the 6 million corporations that filed tax returns in 2006 had assets less than $5 million -- assets, not net worth.
So we are talking about a prohibition that covers every corporation in the United States, including nonprofit corporations, limited liability corporations, Subchapter S corporations and every union in the United States.
Justice Ginsburg: But what are the -- you have used the word Mr. Olson.
One answer to that is that no entity is being prohibited, that it is a question of not whether corporations can contribute but how.
They can use PACs and that way we assure that the people who contribute are really supportive of the issue, of the candidate.
But so the -- the corporation can give, but it has to use a PAC.
Mr. Olson: I respectfully disagree.
The corporation may not expend money.
It might find people, stockholders or officers, who wanted to contribute to a separate fund, who could then speak.
That in one -- to use the words of one Justice, that is ventriloquist-speak.
I would say that it is more like surrogate speech.
If you can find some other people that will say what you want to say and get them to contribute money through a process that this just--
Justice Ginsburg: Who is the "you"?
I mean do you -- you -- those are the directors, the CEO, not the shareholders?
We don't know what they think.
Mr. Olson: --Well, this statute is not limited to cases where the shareholders agree or don't agree with what the corporation says.
As the Court said in the Bellotti case, the prohibition would exist whether or not the shareholders agree.
But let me go back to your question.
Justice Scalia: It -- it covers totally -- totally owned corporations, too, doesn't it?
Mr. Olson: Yes.
Justice Scalia: I mean, if I owned all the stock in a corporation, the corporation still can't--
Mr. Olson: Yes.
And it includes membership corporations such as Citizens United that--
Justice Breyer: And the individual contribution also covers people who would like to give $2500 instead of $2400, which is the limit.
And maybe there are 100 million or 200 million people in the United States who, if they gave 2500 rather than 2400, nobody could say that that was really an effort to buy the Senator or the Congressman.
So is that unconstitutional, too?
Mr. Olson: --No -- well, what this Court has said is that in connection with contribution limitations there is a potential compelling governmental interest.
Justice Breyer: Yes.
Mr. Olson: This is what Buckley says.
Justice Breyer: Yes.
Mr. Olson: Then that -- in that -- but expenditures, which is what we are talking about today, do not concern the -- the question, the actual threat of quid pro quo corruption or the appearance of quid pro quo corruption.
And you know, Justice Breyer, what the Court said in that case is because it's not inhibiting someone from actually speaking, it's -- it's giving money to someone--
Justice Breyer: So here the obvious argument is: Look, they said the compelling interest is that people think that representatives are being bought, okay?
That's to put it in a caricature, but you understand what I'm driving at, okay?
That's what they said in Buckley v. Valeo.
So Congress now says precisely that interest leads us to want to limit the expenditures that corporations can make on electioneering communication in the last 30 days of a primary, over-the-air television, but not on radio, not on books, not on pamphlets, not on anything else.
So in what respect is there not conceptually at least a compelling interest and narrow tailoring?
Mr. Olson: --Well, in the first place, I accept what the Court said in Buckley, that expenditures do not raise that concern at all.
Congress has not made that finding.
You are talking -- and you mentioned just -- just a matter of radio and television, but in Buckley v. Valeo the Court specifically said that that is the most important means of communicating concerning elections--
Justice Breyer: It's important--
Mr. Olson: --And the Court used the word "indispensable".
So what -- and -- and what the Court said in Buckley v. Valeo is it compared a limitation on expenditures, independent uncoordinated expenditures, with the prohibition that the Court addressed when it had a statute before it that said newspapers couldn't endorse candidates on the day of election, and the Tornillo case, where it required a right of reply to be given.
And the Court said those restrictions, which were unconstitutional, were considerably less, and that the restriction in Buckley v. Valeo on expenditures--
Justice Kennedy: I -- I agree -- I agree that Buckley made the distinction between contributions and expenditures, and it seems to me that the government's argument necessarily wants to water down that distinction.
But in response or just in furtherance of Justice Breyer's point, you have two cases, one in which an officeholder goes to a corporation and says: Will you please give me money?
They say: We can't do that.
The other is in which a corporation takes out an ad for the -- for the candidate, which relieves that candidate of the responsibility of -- of substantial television coverage.
Isn't that about the same?
Mr. Olson: --Well, in the first place, if there is any coordination--
Justice Kennedy: And I -- and I think Buckley says no.
Mr. Olson: --Buckley says--
Justice Kennedy: But, as a practical matter, is that always true?
Mr. Olson: --Well, it may not always be true.
In the infinite potential applications of something like that, Justice Kennedy, anything might possibly be true.
And Justice Breyer said, well, what if Congress thought or what if Congress thought the people might think that that was kind of somehow suspect?
That is not a basis for prohibiting speech by a whole class of individual--
Justice Breyer: --Well, of course, it did -- was a basis for prohibiting speech by, in the sense of giving contributions above $2,400, by 300 million people in the United States.
But the point, which I think is the one that Justice Kennedy was picking up, is are we arguing here between you and my questions, is the argument in this case about the existence of a compelling interest?
Because Congress seemed to think that there was certainly that; it's this concern about the perception that people are, say, buying candidates.
Are we arguing about narrow tailoring?
Congress thought it was narrow tailoring.
Or are we arguing about whether we should second-guess Congress on whether there is enough of a compelling interest and the tailoring is narrow enough?
Mr. Olson: --You must always second-guess Congress when the First Amendment is in play.
And that we are arguing -- we are not -- we are discussing--
Justice Breyer: Yes.
Mr. Olson: --both the compelling ----
--both the compelling governmental interest and the narrow tailoring, and what -- what -- there is not a sufficient record.
The reason -- the government has shifted position here.
They were, first of all, talking about the so-called distortion rationale in Austin, the distortion rationale which they seem to have abandoned in the -- in the supplemental briefs filed in connection with this argument, and they resorted to the corruption, appearance of corruption.
There isn't a sufficient record of this.
Justice Ginsburg: But what about the district court's finding?
Wasn't there a finding before the three-judge court that Federal officials know of and feel indebted to corporations or unions who finance ads urging their election or the defeat of their opponent?
There was a finding of fact to that effect, was there not?
Mr. Olson: --The find -- yes.
I -- there is something to that effect in the district court opinion, but it doesn't cover all corporations.
It didn't focus in specifically on expenditures.
Justice Ginsburg: So if -- so if they just covered large corporations, so you take out the mom and pop single shareholder--
Mr. Olson: Well, that is 97 percent of the corporation.
Justice Ginsburg: --Not 97 percent of the contributions.
I mean, the contributions that count are the ones from the corporations that can amass these huge sums in their treasuries.
Mr. Olson: I think that goes back to Justice Kennedy's question, and my response, which distinguishes between contributions and expenditures.
The point that Justice Kennedy was making in his question is that under -- under some circumstances an expenditure might coincide or resonate with what the candidate wishes to do, but the Court looked at that very carefully in Buckley v. Valeo and said that might not be the case.
It might, in fact, be these expenditures might be counterproductive when they are independent, they are not coordinated with the candidate, they are more directly expression by the party spending the money, they are not like a contribution, so they are more of an infringement on the right to speak.
Chief Justice Roberts: Counsel--
Mr. Olson: And they are less of a threat of corruption because there is less -- there is no quid pro quo there, and if there is it would be punishable as a crime.
Chief Justice Roberts: --Counsel, in your discussion of Austin, you rely on its inconsistency with Bellotti.
Bellotti, of course, involved a referendum and Austin expenditures in an individual election.
Why isn't that a significant distinction?
Mr. Olson: Well, it is -- it is -- what the Bellotti Court said is that we are not deciding that question.
And -- and Austin did address, you are correct, expenditures, but it based it on a rationale--
Justice Stevens: It more than said we are not deciding.
It said they are entirely different situations.
You read that long footnote which has been cited six or eight times by our later cases.
Mr. Olson: --Yes.
And I also read the footnote 14 in the Bellotti case that cited case after case after case that said corporations had rights, protected rights under the First Amendment.
I am not disagreeing with what you just said, Justice Stevens.
The Court said it was -- it was dicta, because the Court did not deal with--
Justice Stevens: But it has been repeated -- that footnote has been repeatedly cited in subsequent cases, most of which were unanimous.
Mr. Olson: --Well, because it was -- and I agree the Bellotti Court was not discussing that.
But The Bellotti Court--
Justice Stevens: It did discuss it precisely in that footnote and it said it's a different case.
Mr. Olson: --I understand and I don't disagree with what you have just said, Justice Stevens.
Justice Scalia: --It didn't say it would come out differently.
It just said, we're not deciding that case, right?
Mr. Olson: That -- that is -- that's the point I'm trying to make.
Justice Scalia: I don't mind citing that.
Bellotti didn't decide that.
Mr. Olson: What Bellotti also said is -- and I think this is also in many decisions of this Court -- the inherent worth of speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual.
Chief Justice Roberts: Now that we've cleared up that Bellotti didn't decide the question, what is the distinction that -- why don't you think that distinction makes sense?
In other words, a corporate -- you don't have a potential for corruption if a corporation is simply speaking on a referendum that may directly affect its interest.
If you are dealing with a candidate, what the Court has said in the past is that you do have that problem of corruption.
Mr. Olson: Well--
Chief Justice Roberts: In other words, why isn't that distinction a way to reconcile Bellotti and Austin?
Mr. Olson: --There is a distinction, but I think the distinction goes back to, A, expenditures versus contributions, number one; and then secondly, it goes back to what this Court said in conjunction with the impossibility of finding a distinction between issue ads and candidate ads.
The line dissolves on practical application.
Chief Justice Roberts: Where did we say that?
Mr. Olson: --You said that repeatedly, including most recently in the Wisconsin Right to Life case.
And it first appeared in Buckley itself.
The distinction is very hard to draw between the interest that the speaker is addressing and whether it's a candidate or an issue, because issues are wrapped up in candidates.
The corporation interest and the interests that its fiduciary officers are representing when it speaks on behalf of the corporation--
Justice Stevens: I don't think you are correct to say the Court said there was no distinction.
It said the distinction requires the use of magic words.
And that's what they said in Wisconsin Right to Life, too.
Both of them said there is a distinction.
Mr. Olson: --Well, but the words--
Justice Stevens: It's difficult to draw in some cases, but nobody said there is no distinction that I am aware of.
Mr. Olson: --Well, what the Court -- to use -- to use the words of the Court, which occurred repeatedly, is that the distinction dissolves impractical application.
That, Justice Stevens, I think addresses the very commonsense point that when you are addressing an issue, whether you are addressing a referendum matter, whether it is a proposed legislation or a candidate that is going to raise taxes on the corporation, those distinctions dissolve.
It's all First Amendment freedom.
Justice Scalia: I -- I -- I thought that Buckley had narrowed the statute precisely to magic words and still found it unconstitutional as applied to corporations that made independent expenditures.
Mr. Olson: Yes.
Justice Scalia: Isn't that what happened in Buckley?
Mr. Olson: The $1,000 limit in Buckley was, first of all, limited to the magic words "candidacy expression"; then secondly, the Court -- and the -- and the words of the statute were "any person", which included corporations found, the statute as narrowed unconstitutional and said--
Justice Scalia: And some of the plaintiffs were corporations.
Mr. Olson: --Some of the plaintiffs were corporations.
Justice Stevens: Yes, but that point wasn't even discussed in the opinion, was it?
Mr. Olson: It was not discussed in the opinion.
Justice Stevens: No.
Mr. Olson: But what was discussed in the opinion was the breadth of the definition of "person", which did include corporation.
Corporations were parties in the case.
And in that part of the Buckley case, the Court repeatedly cites cases involving corporations, including NAACP v. Alabama and New York Times v. Sullivan, all cases involving corporations.
So while it wasn't specifically discussed, it was a part of the decision of the Court that a $1,000 limitation was worse, more restrictive than the -- than the restriction of editorials appearing on election day or requiring a newspaper to give a right of reply.
The Court in Buckley in fact says, this is -- with respect to that expenditure limitation, the words of the Court were this is the most drastic of the limitations imposed by the Federal Election Campaign Act.
It goes to the core of First Amendment freedom.
Justice Breyer: If that is so -- this is a point that is concerning me.
I don't know the answer precisely.
But suppose you are right.
Suppose we overrule these two cases.
Would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but political parties couldn't, because political parties can only spend hard money on this kind of expenditure?
And therefore, the group that is charged with the responsibility of building a platform that will appeal to a majority of Americans is limited, but the groups that have particular interests, like corporations or trade unions, can spend as much as they want?
Am I right about the consequence?
If I am right, what do we do about it?
Mr. Olson: I think you are wrong about the consequence.
There are 27 States that have no limitations on either contributions or expenditures and that -- the Earth is not--
Justice Breyer: No, I'm not -- I'm not -- I am saying am I right in thinking that if you win, the political party can't spend this money, it's limited to hard money contributions, but corporations and trade unions can spend unlimited funds?
Mr. Olson: --Well, if -- if the Court decides in favor of the arguments that we are making here, I think what you are suggesting is that because there are other limitations that someone has not challenged in this case, that that would be somehow unfair and unbalanced.
Justice Breyer: No, I'm not suggesting that.
I am suggesting we will make a hash of this statute, and if we are going to make a hash of this statute, what do we do about it?
And that's why I want you to take a position on another important part of that statute, and that is the part that says political parties themselves cannot make these expenditures that we are talking about except out of hard money.
Mr. Olson: What -- I want to address that in this way, and I said when we were here before the most fundamental right that we can exercise in a democracy under the First Amendment is dialogue and communication about political candidates.
We have wrapped up that freedom, smothered that freedom, with the most complicated set of regulations and bureaucratic controls.
Last year the Federal Election Commission that was supposed to be able to give advisory opinions didn't even have a quorum for 6 months of the year 2008 when people would have needed some help from the Federal Election Commission.
What I am saying, in answer to your question, Justice Breyer, there are, I suspect, all kinds of problems with Federal election laws where they apply to parties and where they apply to what candidates might do and so forth; but that has never been a justification.
We will uphold a prohibition on all kinds of people speaking because if we allowed them to speak someone else might complain that they don't get to speak as much as they would like.
Justice Kennedy: Well, with reference to any incongruities that might flow from our adopting your position, are you aware of any case in this Court which says that we must refrain from addressing an unconstitutional aspect of the statute because the statute is flawed in some other respects as well?
Mr. Olson: No, I'm not, and that's -- I think that was what I was attempting to say in response to what Justice Breyer was asking me.
Justice Sotomayor: Mr. Olson, are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case?
I know that we asked for further briefing on this particular issue of overturning two of our Court's precedents.
But are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?
Mr. Olson: No, Justice Sotomayor.
What -- what -- there are all kinds of lines that the Court could draw which would provide a victory to my client.
There are so many reasons why the Federal Government did not have the right to criminalize this 90-minute documentary that had to do with elections, but what the Court addressed specifically in the Washington Right to Life case is that the lines if they are to be drawn must not be lines that are ambiguous, that invite litigation, that hold the threat of prosecution over an individual; and in practical application that is what the--
Justice Sotomayor: Mr. Olson, my difficulty is that you make very impassioned arguments about why this is a bad system that the courts have developed in its jurisprudence, but we don't have any record developed below.
You make a lot of arguments about how far and the nature of corporations, single corporations, single stockholder corporations, et cetera.
But there is no record that I am reviewing that actually goes into the very question that you're arguing exists, which is a patchwork of regulatory and jurisprudential guidelines that are so unclear.
Mr. Olson: --I would like to answer that.
There are several answers to it and I would like to reserve the balance of my time for rebuttal.
It is the government has the burden to prove the record that justifies telling someone that wants to make a 90-minute documentary about a candidate for president that they will go to jail if they broadcast it.
The government has the obligation and the government had a long legislative record and plenty of opportunity to produce that record and it's their obligation to do so.
Justice Stevens: Mr. Olson--
Justice Sotomayor: But the facial challenge--
Justice Stevens: --may I ask one question you can answer on rebuttal?
No one has commented on the National Rifle Association's amicus brief.
None of the -- none of the litigants have.
That's in response to Justice Sotomayor's thought that there are narrow ways of resolving the problem before us.
On rebuttal, will you tell us what your view on their solution to this problem is?
Mr. Olson: I will, Justice Stevens.
Chief Justice Roberts: Why don't you tell us now.
We will give you time for rebuttal.
Justice Scalia: Don't keep us in suspense.
Mr. Olson: Every line, including the lines that would be drawn in several of the amicus briefs, and they are not the same, could put the entity who wishes to speak before you again a year from now.
Because the movie might be shorter, it might be video on demand, it might be a broadcast, it might have a different tone with respect to a candidate.
Every one of those lines puts the speaker at peril that he will go to jail or be prosecuted or there will be litigation, all of which chills speech and inhibits individual--
Justice Stevens: No, but to answer my question, the line suggested by the NRA is the line identified by Congress in the Snowe-Jeffords amendment dealing with individual financing of speech which would separate all of these problems.
What is your comment on that possible solution to the problem?
Mr. Olson: --I would like to take advantage of Justice Stevens' offer and respond to that during the rebuttal, Mr. Chief Justice.
Chief Justice Roberts: Thank you, Mr. Olson.
ORAL ARGUMENT OF FLOYD ABRAMS ON BEHALF OF SENATOR MITCH McCONNELL, AS AMICUS CURIAE, IN SUPPORT OF THE APPELLANT
Mr. Abrams: Mr. Chief Justice, and may it please the Court: The first case cited to you by Mr. Olson happened to be New York Times v. Sullivan, and I would like to begin by urging two propositions on you from that case.
In that case the Court was confronted with a situation where the Times made three arguments to the Court.
They said -- for us to win, they said, you either have to revise, basically federalize, libel law to a considerable degree, which they did; or, they said, we only sold 390 copies in Alabama, so you could rule in our favor by saying there was no jurisdiction; or, they said, we didn't even mention Sheriff Sullivan's name, so you could rule in our favor on the ground that they haven't proved a libel case.
The Court did the first.
It did the first, which is the broader rather than the narrowest way to address the question, and I suspect they did it -- don't know, but I suspect they did it -- because they had come to the conclusion that the degree of First Amendment danger by the sort of lawsuits which were occurring in Alabama and elsewhere was something that had to be faced up to by the Court now, or--
Justice Ginsburg: Mr. Abrams, Times v. Sullivan was not -- did not involve overruling precedents of this Court that had been followed by this Court and others.
So, I think the situation is quite different.
Mr. Abrams: --That's true, Your Honor.
It did involve overruling 150 years of American jurisprudence.
I mean, there was no law at that point that said that actual malice--
Justice Ginsburg: There was no -- there was no decision of this Court, I mean--
Mr. Abrams: --That's true, Your Honor.
Justice Ginsburg: --We do tend to adhere to our precedents--
Mr. Abrams: Yes.
Justice Ginsburg: --especially a case like Austin which was repeating the business about amassing large funds in corporate treasuries.
It was not a new idea in Austin, and it was repeated after -- after Austin.
But there was -- so Times v. Sullivan I think is quite distinct.
The question that was posed here is, is it a proper way to resolve this case, to overrule one precedent in full and another in part?
Mr. Abrams: And what I'm urging on you, Your Honor, is that by a parity of reasoning, although not precisely the same situation, that there are cases in which there is a -- an ongoing threat to freedom of expression which may lead -- if you were to agree to that, which may lead the Court to say, rather than taking a narrower route to the same result, that it is worth our moving away in this case from looking for the narrowest way out, and determining it now, rather than the next as-applied challenge.
Justice Scalia: There are -- there are two separate questions that -- that have been raised in opposition to your position.
One is -- one is that we should not resolve a broad constitutional issue where there are narrower grounds, and that's the question you are responding to.
An entirely separate question is the issue of stare decisis, and you acknowledge that stare decisis was not involved in New York Times v. Sullivan, but the first question obviously was.
Mr. Abrams: And stare decisis of course is a question much -- much briefed by the parties, and it is one which involves of course a consideration not only of the merits of the decision, but certain other factors, the length of time the decision has been in effect and the like.
The time in this case for the McConnell case, of course, is only 6 years.
The time for the Austin case is 19 years, which is less than one ruling of this Court's just last term.
Justice Ginsburg: But what the Court said in Austin it also said in the NRWC case, which was I think 8 years before Austin.
So Austin was not a new invention.
Mr. Abrams: Well, Austin was the first time that corporate speech was barred -- corporate independent expenditures were barred by a ruling of this Court.
That had not happened prior to Austin, and the Solicitor General's brief acknowledges that.
Justice Ginsburg: But there have been limits on corporate spending in aid of a political campaign since the turn of the 20th century.
Mr. Abrams: --There had been limits on corporate contributions since the turn of the century.
Corporate independent expenditures came much later and I think that is something that I think is worth--
Justice Stevens: Much later than 1947.
Mr. Abrams: --Yes, Your Honor.
In 1947, President Truman vetoed that bill, saying that it was a dangerous intrusion into free speech.
That has always been an area of enormous controversy, not just in the public sphere but in the judicial sphere.
The early cases about Taft-Hartley were ones in which what the Court did was to basically say in one case after another that the statute did not govern the particular facts of the case so as to avoid--
Justice Stevens: But those were union cases, weren't they, rather than corporate cases?
Mr. Abrams: --Yes, they were three union cases.
And the case after that essentially was Buckley.
And Buckley held unconstitutional the limits posed there to independent expenditures.
All I'm saying is that this is not a situation as if we have an unbroken amount of years throughout American history in which it has been accepted that independent expenditures could be barred.
It has always been a matter of high level of controversy, with courts at first and understandably shying away from facing up to the issue directly and then the first ruling on point.
Justice Stevens: But have you read Justice Rehnquist's dissent in the Bellotti case?
Mr. Abrams: I'm sorry, Your Honor.
Justice Stevens: Have you read Justice Rehnquist's dissent in the Bellotti case?
Mr. Abrams: Yes, I have.
Justice Stevens: Which is somewhat inconsistent with what you said.
Mr. Abrams: Yes, it is.
Chief Justice Roberts: And also inconsistent with his later view, correct?
Mr. Abrams: Yes.
Justice Sotomayor: Going back to the question of stare decisis, the one thing that is very interesting about this area of law for the last 100 years is the active involvement of both State and Federal legislatures in trying to find that balance between the interest of protecting in their views how the electoral process should proceed and the interests of the First Amendment.
And so my question to you is, once we say they can't, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process?
Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.
But we can go back to the very basics that way, but wouldn't we be doing some more harm than good by a broad ruling in a case that doesn't involve more business corporations and actually doesn't even involve the traditional nonprofit organization?
It involves an advocacy corporation that has a very particular interest.
Mr. Abrams: Your Honor, I don't think you'd be doing more harm than good in vindicating the First Amendment rights here, which transcend that of Citizens United.
I think that, reading my friend's brief here on the right, they come -- some of them at least come pretty close to saying that there must be a way for Citizens United to win this case other than a broad way.
In my view the principles at stake here are the same.
Citizens United happens to be sort of the paradigmatic example of the sort of group speaking no less about who to vote for or not who to vote for or what to think about a potential ongoing candidate for President of the United States.
But in lots of other situations day by day there is a blotch to public discourse caused as a result of this Congressional legislation.
And so we think it is not a matter of cutting off what legislatures can do.
They can still pass legislation doing all sorts of things.
They can do public funding.
They can do many other things that don't violate the First Amendment.
If we are right in saying that independent expenditures, that category of money leading to speech that we are talking about today, if we are right that that is the sort of speech which is at the core of the First Amendment, then you would be doing only good, only good, by ruling that way today across the board.
Thank you, Your Honor.
Chief Justice Roberts: Thank you, Mr. Abrams.
ORAL ARGUMENT OF ELENA KAGAN ON BEHALF OF THE APPELLEE
General Kagan: Mr. Chief Justice and may it please the Court: I have three very quick points to make about the government position.
The first is that this issue has a long history.
For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.
Justice Scalia: Wait, wait, wait, wait.
We never questioned it, but we never approved it, either.
And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.
General Kagan: --I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case -- first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley -- and then of course in Austin specifically approved those limits.
Justice Scalia: I don't understand what you are saying.
I mean, we are not a self -- self-starting institution here.
We only disapprove of something when somebody asks us to.
And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn't disapprove it.
General Kagan: Well, you are not a self-starting institution.
But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.
Justice Kennedy: But that judgment was validated by Buckley's contribution-expenditure line.
And you're correct if you look at contributions, but this is an expenditure case.
And I think that it doesn't clarify the situation to say that for 100 years -- to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction.
We've never allowed that.
General Kagan: Well, I think Justice Stevens was right in saying that the expenditure limits that are in play in this case came into effect in 1947, so it has been 60 years rather than 100 years.
But in fact, even before that the contribution limits were thought to include independent expenditures, and as soon as Congress saw independent expenditures going on Congress closed what it perceived to be a loophole.
So in fact for 100 years corporations have made neither contributions nor expenditures, save for a brief period of time in the middle 1940's, which Congress very swiftly reacted to by passing the Taft-Hartley Act.
Now, the reason that Congress has enacted these special rules -- and this is the second point that I wanted to make--
Justice Stevens: Before you go to your second point, may I ask you to clarify one part of the first, namely, your answer to the question I proposed to Mr. Olson, namely, why isn't the Snowe-Jeffords Amendment, which was picked on by Congress itself, an -- and which is argued by the NRA, an appropriate answer to this case?
General Kagan: --That was my third point, Justice Stevens.
Justice Stevens: Oh, I'm sorry.
General Kagan: So we will just skip over the second.
My third point is that this is an anomalous case in part because this is an atypical plaintiff.
And the reason this is an atypical plaintiff is because this plaintiff is an ideological nonprofit and--
Chief Justice Roberts: So you are giving up -- you are giving up the distinction from MCFL that you defended in your opening brief?
There you said this doesn't qualify as a different kind of corporation because it takes corporate funds, and now you are changing that position?
General Kagan: --No, I -- I don't think we are changing it.
MCFL is the law, and the FEA -- FEC has always tried to implement MCFL faithfully.
And that's what the FEC has tried to do.
But if you--
Chief Justice Roberts: So I guess -- do you think MCFL applies in this case even though the corporation takes corporate funds from for-profit corporations?
General Kagan: --I don't think MCFL as written applies in this case, but I think that the Court could, as lower courts have done, adjust MCFL potentially to make it apply in this case, although I think that would require a remand.
What lower courts have done -- MCFL was set up, it was written in a very strict kind of way so that the organization had to have a policy of accepting no corporate funds whatsoever.
Some of the lower courts, including the D.C. Circuit, which, of course, sees a lot of these cases, have suggested that MCFL is too strict, that it doesn't--
Chief Justice Roberts: Do you -- do you think it's too strict?
General Kagan: --I -- I -- the FEC has no objection to MCFL being adjusted in order to -- to give it some flexibility.
Chief Justice Roberts: So you want to give up this case, change your position, and basically say you lose solely because of the questioning that we have directed on reargument?
General Kagan: --Solely because?
I am sorry?
Chief Justice Roberts: Because of the question we have posed on reargument.
General Kagan: No, I don't think that that is fair.
We think -- we continue to think that the -- the judgment below should be affirmed.
If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.
Chief Justice Roberts: What case of ours -- what case of ours suggests that there is a hierarchy of bases on which we should rule against a party when both of them involve constitutional questions?
Extending -- modifying MCFL would be, I assume, by virtue of the First Amendment.
Overruling Austin would be by virtue of the First Amendment.
So what case says we should prefer one as opposed to the other?
General Kagan: I think the question really is the Court's standard practice of deciding as-applied challenges before facial challenges.
And this case certainly raises a number of tricky as-applied questions.
One is the question of how the -- the statute applies to nonprofit organizations such as this one.
Another is a question of how it applies to VOD transmissions.
Yet another is the question of how it applies to a 90-minute infomercial as opposed to smaller advertisements.
Justice Kennedy: But if you -- if you insist on the as-applied challenge, isn't that inconsistent with the whole line of cases that began in Thornhill v. Alabama and Coates v. Cincinnati?
What about the Thornhill doctrine?
It is not cited in the briefs, but that doctrine is that even a litigant without standing to object to a particular form of conduct can raise that if the statute covers it in order that the statute does not have an ongoing chill against speech.
And there is no place where an ongoing chill is more dangerous than in the elections context.
General Kagan: Well, I think even--
Justice Kennedy: So you are asking us to have an ongoing chill where we have as-applied challenges which are based on, as I indicated before, speaker, content, time, and this is the kind of chilling effect that the Thornhill doctrine stands directly against.
General Kagan: --You know, I think even in the First Amendment context, Justice Kennedy, the Court will not strike down a statute on its face unless it finds very substantial overbreadth, many applications of the statute that are unconstitutional, as opposed to just a few or just some.
What I am suggesting here is that the Court was right in McConnell and then confirmed in WRTL to find that BCRA, which is of course the only statute directly involved in this case, did not have that substantial overdraft.
Justice Kennedy: Let me ask you this.
Suppose that we were to rule that nonprofit corporations could not be covered by the statute.
Would that -- would the statute then have substantial overbreadth?
General Kagan: Well, I would urge you not to do that in that kind of sweeping way, because the reason for the nonprofit corporations being covered is to make sure that the nonprofit corporations don't function as conduits for the for-profit corporations.
Justice Kennedy: But suppose we were to say that.
Would the statute then not be substantially overbroad?
General Kagan: Well, I don't think that the statute is substantially overbroad right now.
So if you took out certain applications, I can't think--
Justice Kennedy: But I am asking you to assume that we draw the nonprofit/profit distinction.
Then the statute, it seems to me, clearly has to fall because, number one, we couldn't sever it based on the language.
General Kagan: --I see what you are saying.
Well, you could do a couple of things.
You could do what Justice Stevens suggested.
Justice Stevens suggested -- I suggested to Chief Justice Roberts--
Justice Stevens: I don't think you -- I don't think you really caught what I suggested because you treated it as an enlargement of the MCFL example.
General Kagan: --I was going to go back.
Justice Stevens: But that is not what the National Rifle Association argues or what Snowe-Jeffords covers.
It covers ads that are financed exclusively by individuals even though they are sponsored by a corporation.
General Kagan: Yes, that's exactly right.
What you are suggesting, Justice Stevens, is essentially stripping the Wellstone amendment from the--
Justice Stevens: Correct and treating the Snowe-Jeffords amendment as being the correct test.
And nobody has explained why that wouldn't be a proper solution, not nearly as drastic as -- as being argued here.
General Kagan: --Yes, and there are some, you know -- there are -- there are some reasons that that might -- that might be appropriate.
The Wellstone amendment was a funny kind of thing.
It was passed very narrowly, but beyond that it was passed with a -- a really substantial support of many people who voted against the legislation in the end, presumably as a poison pill.
Justice Breyer: Well, if we -- if we go -- if we go that route, what we are doing is creating an accounting industry, aren't we?
Corporations give huge amounts of money to the C-4 organization, and then somebody, perhaps the FEC, has to decide whether in fact that is a way of subverting the prohibition against the direct payment for the communication, right?
Okay, so Congress said, we don't want that.
Congress said, that's going to be a nightmare, and we decide Wellstone, for whatever reasons.
Now don't we have to focus on whether Congress can say that or whether it can't?
Justice Stevens: But--
Justice Breyer: And I don't know why it cannot say it.
Justice Stevens: --Congress also said if you strike down the Wellstone amendment, we want the Snowe -- Jeffords amendment.
Justice Breyer: That's true.
Justice Stevens: And why shouldn't we follow that direction?
General Kagan: If you strike down the Wellstone amendment, what is left is the Snowe-Jeffords amendment--
Justice Stevens: Right.
General Kagan: --which allows nonprofit organizations of the kind here to fund these ads out of separate bank accounts, not PACs just separate bank accounts--
Justice Stevens: Correct.
General Kagan: --which include only individual expenditures.
Justice Stevens: Then why is that not the -- the wisest narrow solution of the problem before us?
General Kagan: Well, it is -- it is certainly a narrower and I think better solution than a facial invalidation of the whole statute.
Chief Justice Roberts: Counsel, what do you -- what do you understand to be the compelling interest that the Court articulated in Austin?
General Kagan: I think that what the Court articulated in Austin -- and, of course, in the government briefs we have suggested that Austin did not articulate what we believe to be the strongest compelling interest, which is the anticorruption interest.
But what the Court articulated in Austin was essentially a concern about corporations using the corporate form to appropriate other people's money for expressive purposes.
Chief Justice Roberts: Right.
So but you -- you have more or less -- "abandoned" is too strong a word, but as you say you have relied on a different interest, the quid pro quo corruption.
And you -- you articulate on page 11 of your brief -- you recognize that this Court has not accepted that interest as a compelling interest.
So isn't it the case that as you view Austin it is kind of up for play in the sense that you would ground it on an interest that the Court has never recognized?
General Kagan: Well, a couple of points.
The first thing is, as you say, we have not abandoned Austin.
We have simply said that in addition--
Chief Justice Roberts: Where--
General Kagan: --to other people's money interest that--
Chief Justice Roberts: --Where in your -- where in your supplemental briefing do you say that this aggregation of wealth interest supports Austin?
General Kagan: --I would not really call it an aggregation of wealth interest.
I would say that it's -- it's a concern about corporate use of other people's money to--
Chief Justice Roberts: Putting it outside, putting the quid pro quo interest aside, where in your supplemental briefing do you support the interest that was articulated by the Court in Austin?
General Kagan: --Where we talk about shareholder protection and where we talk about the distortion of the electoral process that occurs when corporations use their shareholders' money who may or may not agree--
Chief Justice Roberts: I understand that to be a different interest.
That is the shareholder protection interest as opposed to the fact that corporations have such wealth and they -- they distort the marketplace.
General Kagan: --Well, I -- I think that they are connected because both come--
Chief Justice Roberts: So -- so am I right then in saying that in the supplemental briefing you do not rely at all on the market distortion rationale on which Austin relied; not the shareholder rationale, not the quid pro quo rationale, the market distortion issue.
These corporations have a lot of money.
General Kagan: --We do not rely at all on Austin to the extent that anybody takes Austin to be suggesting anything about the equalization of a speech market.
So I know that that's the way that many people understand the distortion rationale of Austin, and if that's the way the Court understands i, we do not rely at all on that.
Justice Ginsburg: So--
Chief Justice Roberts: So if we have to preserve -- if we are going to preserve Austin we have to accept your invitation that the quid pro quo interest supports the holding there or the shareholder protection interest.
General Kagan: I would say either the quid pro quo interest, the corruption interest or the shareholder interest, or what I would say is a -- is something related to the shareholder interest that is in truth my view of Austin, which is a view that when corporations use other people's money to electioneer, that is a harm not just to the shareholders themselves but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.
Justice Scalia: Let's -- let's talk about overbreadth.
You've -- let's assume that that is a valid interest.
What percentage of the total number of corporations in the country are not single shareholder corporations?
The local hairdresser, the local auto repair shop, the local new car dealer -- I don't know any small business in this country that isn't incorporated, and the vast majority of them are sole-shareholder-owned.
Now this statute makes it unlawful for all of them to do the things that you are worried about, you know, distorting other -- the interests of other shareholders.
That is vast overbreadth.
General Kagan: You know, I think that the single shareholders can present these corruption problems.
Many, many closed corporations, single shareholder corporations--
Justice Scalia: I'm not talking about the corruption interest.
You -- you have your quid pro quo argument, that's another one.
We get to that when we get there.
But as far as the interest you are now addressing, which is those shareholders who don't agree with this political position are being somehow cheated, that doesn't apply probably to the vast majority of corporations in this country.
General Kagan: --You are quite right, Justice Scalia, when -- we say when it comes to single shareholders, the kind of "other people's money" interests, the shareholder protection interests do not apply.
Justice Scalia: So that can't be the justification--
General Kagan: --There--
Justice Scalia: --because if it were, the statute would be vastly overbroad.
General Kagan: --There the strongest justification is the anticorruption interest.
Justice Alito: Well, with respect to that what is your answer to the argument that more than half the States, including California and Oregon, Virginia, Washington State, Delaware, Maryland, a great many others, permit independent corporate expenditures for just these purposes?
Now have they all been overwhelmed by corruption?
A lot of money is spent on elections in California; has -- is there a record that the corporations have corrupted the political process there?
General Kagan: I think the experience of some half the States cannot be more important than the 100-year old judgment of Congress that these expenditures would corrupt the Federal system, and I think that--
Justice Scalia: Congress has a self-interest.
I mean, we -- we are suspicious of congressional action in the First Amendment area precisely because we -- at least I am -- I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents.
Now is that excessively cynical of me?
I don't think so.
General Kagan: --I think, Justice Scalia, it's wrong.
In fact, corporate and union money go overwhelmingly to incumbents.
This may be the single most self-denying thing that Congress has ever done.
If you look -- if you look at the last election cycle and look at corporate PAC money and ask where it goes, it goes ten times more to incumbents than to challengers, and in the prior election cycle even more than that.
And for an obvious reason, because when corporations play in the political process, they want winners, they want people who will produce outcomes for them, and they know that the way to get those outcomes, the way to get those winners is to invest in incumbents, and so that's what they do.
As I said, in double digits times more than they invest in challengers.
So I think that that -- that that rationale, which is undoubtedly true in many contexts, simply is not the case with respect to this case.
Justice Kennedy: But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and shareholders what the policy ought to be, some other corporation can't object to that during the election cycle.
The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject.
Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.
General Kagan: Well--
Justice Kennedy: When other corporations, via -- because of the very fact you just point out, have already been used and are being used by the government to express its views; and you say another corporation can't object to that.
General Kagan: --Well, to the extent, Justice Kennedy, that you are talking about what goes on in the halls of Congress, of course corporations can lobby members of Congress in the same way that they could before this legislation.
What this legislation is designed to do, because of its anticorruption interest, is to make sure that that lobbying is just persuasion and it's not coercion.
But in addition to that, of course corporations have many opportunities to speak outside the halls of Congress.
Justice Stevens: One of the amicus briefs objects to -- responds to Justice Kennedy's problem by saying that the problem is we have got to contribute to both parties, and a lot of them do, don't they?
General Kagan: A lot of them do, which is a suggestion about how corporations engage the political process and how corporations are different from individuals in this respect.
You know, an individual can be the wealthiest person in the world but few of us -- maybe some -- but few of us are only our economic interests.
We have beliefs, we have convictions; we have likes and dislikes.
Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.
Chief Justice Roberts: Well, that's not -- I'm sorry, but that seems rather odd.
A large corporation just like an individual has many diverse interests.
A corporation may want to support a particular candidate, but they may be concerned just as you say about what their shareholders are going to think about that.
They may be concerned that the shareholders would rather they spend their money doing something else.
The idea that corporations are different than individuals in that respect, I just don't think holds up.
General Kagan: Well, all I was suggesting, Mr. Chief Justice, is that corporations have actually a fiduciary obligation to their shareholders to increase value.
That's their single purpose, their goal.
Chief Justice Roberts: So if a candidate -- take a tobacco company, and a candidate is running on the platform that they ought to make tobacco illegal, presumably that company would maximize its shareholders' interests by opposing the election of that individual.
General Kagan: But everything is geared through the corporation's self-interest in order to maximize profits, in order to maximize revenue, in order to maximize value.
Individuals are more complicated than that.
So that when corporations engage the political process, they do it with that set of you know, blinders -- I don't mean it to be pejorative, because that's what we want corporations to do, is to--
Chief Justice Roberts: Well, I suppose some do, but let's say if you have ten individuals and they each contribute $1,000 to a corporation, and they say,
"we want this corporation to convey a particular message. "
why can't they do that, when if they did that as partnership, it would be all right?
General Kagan: --Well, it sounds to me as though the corporation that you were describing is a corporation of the kind we have in this case, where one can assume that the members all sign on to the corporation's ideological mission, where the corporation in fact has an ideological mission.
Justice Scalia: General Kagan, most -- most corporations are indistinguishable from the individual who owns them, the local hairdresser, the new auto dealer -- dealer who has just lost his dealership and -- and who wants to oppose whatever Congressman he thinks was responsible for this happening or whatever Congressman won't try to patch it up by -- by getting the auto company to undo it.
There is no distinction between the individual interest and the corporate interest.
And that is true for the vast majority of corporations.
General Kagan: Well--
Justice Scalia: Yet this law freezes all of them out.
General Kagan: --To the extent that we are only talking about single shareholder corporations, I guess I would ask why it's any burden on that single shareholder to make the expenditures to participate in the political person in the way that person wants to outside the corporate forum?
So single shareholders aren't suffering any burden here; they can do everything that they could within the corporate form, outside the corporate form.
They probably don't get the tax breaks that they would get inside the corporate form, but I'm not sure anything else is very different.
Justice Scalia: Oh, he wants to put up a sign--
Justice Stevens: Ultra Vires would take care of about 90 percent of the small corporations that Justice Scalia is talking about.
They can't just -- they can't even give money to charities sometimes because of Ultra Vires.
Giving political contributions is not typical for corporate activity.
Justice Breyer: Is -- I -- I remember spending quite a few days one summer reading through 1,000 pages of opinion in the D.C. Circuit.
And I came away with the distinct impression that Congress has built an enormous record of support for this bill in the evidence.
And my recollection is, but it is now a couple of years old, that there was a lot of information in that which suggested that many millions of voters think, at the least, that large corporate and union expenditures or contributions in favor of a candidate lead the benefited political figure to decide quite specifically in favor of the -- of the contributing or expending organization, the corporation or the union.
General Kagan: Yes, that's--
Justice Breyer: Now, it was on the basis of that, I think, that this Court upheld the law in BCRA.
But we have heard from the other side there isn't much of a record on this.
So, if you could save me some time here, perhaps you could point me, if I am right, to those thousand pages of opinion and tens of thousands of underlying bits of evidence where there might be support for that proposition?
General Kagan: --Yes, that's exactly right, Justice Breyer, that in addition to the 100-year old judgment that Congress believes this is necessary, that very recently members of Congress and others created a gigantic record showing that there was corruption and that there was the appearance of corruption.
And in that record, many times senators, former senators talk about the way in which fundraising is at the front of their mind in everything that they do the way in which they grant access, the way in which they grant influence, and the way in which outcomes likely change as a result of that fundraising.
Justice Breyer: BCRA has changed all that.
Chief Justice Roberts: Counsel, could I ask, it seems -- to your shareholder protection rationale, isn't it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it?
General Kagan: I don't think so, Mr. Chief Justice.
I mean, I, for one, can't keep stack of what my -- where I hold--
Chief Justice Roberts: You have a busy job.
You can't expect everybody to do that.
General Kagan: --It's not that -- it's not that I have a busy job.
Chief Justice Roberts: But it is extraordinary -- I mean, the -- the idea and as I understand the rationale, we -- we the government, big brother, has to protect shareholders from themselves.
They might give money, they might buy shares in a corporation and they don't know that the corporation is taking out radio ads.
The government has to keep an eye on their interests.
General Kagan: I appreciate that.
It's not that I have a busy job, it's that I, like most Americans, own shares through mutual funds.
If you don't know where your mutual funds are investing, so you don't know where you are--
Chief Justice Roberts: So it is -- I mean, I understand.
So it is a paternalistic interest, we the government have to protect you naive shareholders.
General Kagan: --In a world in which most people own stock through mutual funds, in a world where people own stock through retirement plans in which they have to invest, they have no choice, I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know the extent of the--
Justice Ginsburg: --In that respect, it's unlike the union, because the -- the worker who does not want to affiliate with a union cannot have funds from his own pocket devoted to political causes.
But there is no comparable check for corporations.
General Kagan: --That's exactly right, Justice Ginsburg.
In the union context, of course, it's a constitutional right that the unions give back essentially the funds that any union member or employee in the workplace does not want used for electoral purposes.
Justice Ginsburg: Does that mean that unions should be taken out, because there isn't the same -- the shareholder protection interest doesn't -- there is no parallel for the union?
General Kagan: You are right about that.
But I -- the government believes that with respect to unions, the anticorruption interest is as strong, and that unions should be kept in.
I think what your point suggests, that the -- that the union member point suggests why Congress might have thought that there was a compelling interest to protect corporate shareholders in the same way that, let's say, dissenting union members are protected by the Constitution.
There is no State action, of course, so there is no constitutional right in the corporate context.
But Congress made a judgment that it was an important value that shareholders have this choice, have the ability both to invest in our country's assets and also to be able to choose our country's leaders.
Chief Justice Roberts: It's not investing in our country's--
Justice Kennedy: In the course of this argument, have you covered point two?
General Kagan: I very much appreciate--
Justice Kennedy: And I would like to know what it is, so that I -- my notes are complete.
General Kagan: --I very appreciate that, Justice Kennedy.
I think I did cover point two, which was an explanation of some of the questions that the Chief Justice asked me about what interests the government was suggesting motivated these laws and are compelling enough such that this Court certainly should not invalidate these laws.
Chief Justice Roberts: --I take it we have never accepted your shareholder protection interest.
This is a new argument.
General Kagan: I think that that's fair.
Certainly Bellotti does not accept it.
I would think -- you know, National Right to Work is an interesting opinion, because National Right to Work accepts for a unanimous court both the shareholder protection argument and the anticorruption argument with respect to the section 441b in particular.
Now, in later cases the Court has suggested that National Right to Work was only focused on contributions.
If you read National Right to Work, that distinction really does not -- it's not evident on the face of the opinion, and I think Chief Justice Rehnquist at later -- in a later dissent suggested that he had never understood it that way.
But -- so National Right to Work is a confusion on this point.
Chief Justice Roberts: Well, I guess other than that, and I think there may be some ambiguity there, but I wouldn't say NRWC is a holding on shareholder protection.
So to the extent that you abandoned the original rationale in Austin, and articulated different rationales, you have two, the quid pro quo corruption interest and the shareholder protection interest--
General Kagan: --Which we think is not in Austin.
Chief Justice Roberts: --Austin, I thought, was based on the aggregation of immense wealth by corporations.
General Kagan: Again, Austin is not the most lucid opinion.
But the way we understand Austin, what Austin was suggesting was that the corporate form gave corporations significant assets, other people's money that when the corporations spent those assets--
Chief Justice Roberts: Can you -- can you give me the citation to the page in Austin where we accepted the shareholder protection rationale?
General Kagan: --I think it comes when the -- when the Court is distinguishing MCFL.
And the message of that distinction of MCFL is the shareholder protection interest?
Chief Justice Roberts: Do the words "shareholder" -- I don't know, do the words "shareholder protection" appear in the Austin opinion?
General Kagan: --I honestly don't know, Mr. Chief Justice.
And -- and I don't want to--
Chief Justice Roberts: If they don't -- let's assume they don't, then I get back to my question, which is, you are asking us to defend the Austin or support or continue the Austin opinion on the basis of two rationales that we have never accepted, shareholder protection and quid pro quo corruption?
General Kagan: --I would say on the quid pro quo corruption, of course you have accepted that rationale--
Chief Justice Roberts: In the context of contributions, not expenditures.
General Kagan: --That's correct.
And I think what has changed since -- since that time is the BCRA record that Justice Breyer suggested, which was very strong on the notion that there was no difference when it came to corporate contributions and expenditures, that there actually was no difference between the two.
Chief Justice Roberts: Is that a yes?
Is that a yes?
In other words, you are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted, in expenditure context.
General Kagan: --In this -- in this particular context, fair enough.
But, you know, I think--
Justice Kennedy: And to undercut Buckley in so doing?
General Kagan: --Well, I don't think so, because I do think Buckley was about individuals rather than corporations, and Buckley was in 1976, not in 2009, after the very extensive record that was created in BCRA.
I see my time is up.
Justice Ginsburg: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies?
Last time the answer was, yes, Congress could, but it didn't.
Is that -- is that still the government's answer?
General Kagan: --The government's answer has changed, Justice Ginsburg.
It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media.
And we took what the Court -- what the Court's -- the Court's own reaction to some of those other hypotheticals very seriously.
We went back, we considered the matter carefully, and the government's view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context.
And I should say that the FEC has never applied 441b in that context.
So for 60 years a book has never been at issue.
Justice Scalia: --What happened to the overbreadth doctrine?
I mean, I thought our doctrine in the Fourth Amendment is if you write it too broadly, we are not going to pare it back to the point where it's constitutional.
If it's overbroad, it's invalid.
What has happened to that.
General Kagan: I don't think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book.
To say that it doesn't apply to books is to take off, you know, essentially nothing.
Chief Justice Roberts: But we don't put our -- we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
General Kagan: I think a -- a pamphlet would be different.
A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print.
Justice Alito: Well, what if the particular -- what if the particular movie involved here had not been distributed by Video on Demand?
Suppose that people could view it for free on Netflix over the internet?
Suppose that free DVDs were passed out.
Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.
In light of your retraction, I have no idea where the government would draw the line with respect to the medium that could be prohibited.
General Kagan: --Well, none of those things, again, are covered.
Justice Alito: No, but could they?
Which of them could and which could not?
I understand you to say books could not.
General Kagan: Yes, I think what you -- what we're saying is that there has never been an enforcement action for books.
Nobody has ever suggested -- nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that.
Justice Scalia: So you're -- you are a lawyer advising somebody who is about to come out with a book and you say don't worry, the FEC has never tried to send somebody to prison for this.
This statute covers it, but don't worry, the FEC has never done it.
Is that going to comfort your client?
I don't think so.
Justice Ginsburg: But this -- this statute doesn't cover.
It doesn't cover books.
General Kagan: No, no, that's exactly right.
The only statute that is involved in this case does not cover books.
So 441b which--
Chief Justice Roberts: Does cover books.
General Kagan: --which does cover books, except that I have just said that there would be a good as-applied challenge and that there has been no administrative practice of ever applying it to the books.
And also only applies to express advocacy, right?
203 has -- is -- is -- has a broader category of the functional equivalent of express advocacy, but 441b is only express advocacy, which is a part of the reason why it has never applied to a book.
One cannot imagine very many books that would meet the definition of express advocacy as this Court has expressed that.
Chief Justice Roberts: Oh, I'm sorry, we suggested some in the last argument.
You have a history of union organizing and union involvement in politics, and the last sentence says in light of all this, vote for Jones.
General Kagan: I think that that wouldn't be covered, Mr. Chief Justice.
The FEC is very careful and says this in all its regulations to view matters as a whole.
And as a whole that book would not count as express advocacy.
Chief Justice Roberts: Thank you, General.
ORAL ARGUMENT OF SETH WAXMAN ON BEHALF OF SENATORS JOHN McCAIN, ET AL., AS AMICI CURIAE, IN SUPPORT OF THE APPELLEE
Mr. Waxman: Mr. Chief Justice, and may it please the Court: The requirement that corporations fund electoral advocacy the same way individuals do, that is with money voluntarily committed by people associated with the corporation, is grounded in interests that are so compelling that 52 years ago, before Buckley was decided, before FECA was enacted, before Buckley-style quid pro quo corruption was ever addressed, this Court explained that, quote:
"What is involved here is the integrity of our electoral process and not less the responsibility of the individual citizen for the successful functioning of that process. "
If the Court now wishes to reconsider the existence and extent of the interests that underlie that sentiment expressed for the Court by Justice Frankfurter in the context of a prosecution of union officials for running television ads supporting political candidates, it should do so in a case in which those interests are forthrightly challenged with a proper and full record below.
Chief Justice Roberts: One of the amicus briefs, I'm not -- maybe it's professor Hayward, if I am getting that right -- suggested the history of this 1947 provision was such that it really wasn't enforced because people were concerned about the First Amendment interests and that the courts to the extent cases were brought did everything they could to avoid enforcing the limitations.
Mr. Waxman: Well, I don't recall who the professor was either, Mr. Chief Justice, but I do recall pretty well the history that was recounted -- I would say the history that was recounted by this Court in the Auto Workers case, in CIO, in the Pipefitters case, which is quite inconsistent with that.
We've never had this case -- until this Court's supplemental order, we never had a case that challenged directly, quote, "Austin" and Austin-style corruption, which is a term I think that is quite misleading.
When the sober-minded Elihu Root was moved to stand up in 1894 and urged the people of the United States, and urged the Congress of the United States, to enact legislation that would address, quote,
"a constantly growing evil which has done more to shake the confidence of plain people of small means of this country in our political institutions than any practice which has ever obtained since the founding of our government. "
he was not engaging in a high level discussion about political philosophy.
Justice Kennedy: But he was talking about contributions in that context.
That's quite clear.
Mr. Waxman: He -- with all due respect, Justice Kennedy, I don't think that there was any distinction whatsoever in that time between the distinction that this Court came to understand as a result of FECA, and its adjudication of FECA and that -- really the prehistory of Taft-Hartley, between contributions expenditures.
For this reason, Justice Kennedy, was that what Root said was the idea -- and I am quoting now from his speech which is also partly reprinted in this Court's opinion in McConnell -- the idea is to prevent the great companies, the great aggregations of wealth from using corporate funds directly or indirectly to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests as against those of the public.
Justice Scalia: Great aggregations of wealth.
The brief by the Chamber of Commerce, the amicus brief by the Chamber of Commerce points out that 96 percent of its members employ less than 100 people.
These are not aggregations of great wealth.
You are not talking about the railroad barons and the rapacious trusts of the Elihu Root era; you are talking mainly about small business corporations.
Mr. Waxman: Justice Scalia, I take your point and I think you have made this point forceful lily many times before.
A unanimous court in National Right to Work Committee concluded that Congress was entitled to make the judgment that it would treat in order to address this root evil, a problem of such concern that it goes to the very foundation of the democratic republican exercise, that is, the notion of integrity in representative government.
Now this -- this case, of course, is not a case--
Justice Scalia: I don't understand that answer.
I mean, if that's what you were concerned about, what Elihu Root was concerned about, you could have said all corporations that have a net worth of more than, you know, so much or whatever.
That is not what Congress did.
It said all corporations.
Mr. Waxman: --Right.
And Justice Scalia, if a small corporation or even any corporation of any sort wants to bring an as-applied challenge to 441b or a State law analogue and say, you know, I am not the problem that Theodore Roosevelt and Elihu Root was addressed at; there isn't a compelling interest because I only have three employees and $8,000 in my bank account, that's fine.
But what is extraordinary, truly extraordinary, given the sentiments that underlay the Tillman Act and the Taft-Hartley Act is that we would be having a discussion today about the constitutionality of a law that has been on the books forever when no party, no corporation, has ever raised the challenge.
I well recall--
Justice Kennedy: You say it's been on -- it's been on the books forever.
But, No. 1, the phenomenon of -- of television ads where we get information about scientific discovery and -- and environment and transportation issues from corporations who after all have patents because they know something, that -- that is different.
And the -- the history you applied apply to contributions, not to those kinds of expenditures.
Mr. Waxman: --Justice Kennedy, first of all, I -- I think it is actually true that patents are owned by individuals and not corporations.
But be that as it may, there is no doubt -- I am not here saying that this Court should reconsider Bellotti on first principles any more than I am saying that it shouldn't consider Austin on first principles.
Corporations can and do speak about a wide range of public policy issues, and since the controlling opinion was issued in Wisconsin Right to Life, the -- the kind of campaign-related speech that corporations can't engage in, in the pre-election period is limited to the functional equivalent of expressed advocacy and nothing else.
Justice Alito: Mr. Waxman, all of this talk about 100 years and 50 years is perplexing.
It sounds like the sort of sound bites that you hear on TV.
The -- the fact of the matter is that the only cases that are being -- that may possibly be reconsidered are McConnell and Austin.
And they don't go back 50 years, and they don't go back 100 years.
Mr. Waxman: My point here is, Justice Alito -- and I don't mean to be -- to be demeaning this Court with sound bites.
The point is that what -- Austin was, to be sure, the very first case in which this Court had to decide -- actually had to decide whether or not the prohibition on corporate treasury funded campaign speech could properly be limited and was supporting by a compelling interest.
All I am suggesting -- and I hope that if you take nothing else from my advocacy today it will be this -- is that we have here a case in which the Court has asked a question that essentially goes to the bona fides, that is, the factual predicates of the interests that have been viewed as compelling in Austin, in MCFL, in McConnell itself, whether you call it the corrosive effect of corporate wealth, whether you call it, quote, "shareholder protection"--
Justice Alito: And my point is that there is nothing unusual whatsoever about a case in which a party before the Court says, my constitutional rights were violated, and there is no prior decision of this Court holding that what was done is constitutional.
And in that situation is it an answer to that argument that this has never been challenged before?
The Court has never held that it was unconstitutional?
It has been accepted up until this point by the general public that this is -- that this is constitutional?
No, that is not regarded as an answer to that question.
Mr. Waxman: --Mr. Olson is -- was quite right -- either Mr. Olson or Mr. Abrams, I find it so difficult to tell the two apart.
One of them was saying, well, it's, you know -- yes, I think in response to Justice Sotomayor's question, you know, about there is no factual record here.
There is absolutely nothing in this case.
And the response was, well, it's the government's burden.
The government has to prove that any restriction that it imposes passes strict scrutiny.
Fair enough, but the question has to be raised.
The issue has to be raised.
If the -- if Austin, Justice Alito, or the compelling interests that Austin and McConnell relied on were forthrightly challenged in a case, the government would have the option--
Chief Justice Roberts: Well, Mr. Waxman, the government did have that opportunity, and the government compiled a record.
And when the Citizens United abandoned that position -- you are quite right, they changed their course -- the government and the district court complained that it had to go to all this work to develop this record, and yet we hear nothing about what the record showed.
Mr. Waxman: --Well, that's because the ultimate -- I assume I have your permission to answer.
Chief Justice Roberts: Go ahead.
Mr. Waxman: The -- the only challenges that were litigated in the district court -- and they largely were related to disclosure -- were very direct as-applied challenges that had -- that did nothing whatsoever to implicate the foundation of McConnell or Austin.
And all I'm saying is, if you want to reexamine the predicates, the existence and magnitude of interests that Congress has, going back a -- whether it's 60 years or 100 years, and courts, whether it has been the actual rationale of the decision or a predicate of the rationale of the decision, you ought to do it in a case where the -- where the issue is squarely presented so that the government can do what it did in McConnell and in another context in Michigan v. Grutter when it suggested that Aderand had undermined this Court's controlling opinion in Bakke.
Chief Justice Roberts: Thank you, Mr. Waxman.
Mr. Olson five minutes.
REBUTTAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE APPELLANT
Mr. Olson: Thank you, Mr. Chief Justice.
The words that I would leave with this Court are the Solicitor General's.
The government's position has changed.
The government's position has changed as to what media might be covered by congressional power to censor and -- and ban speech by corporations.
Now we learn, contrary to what we heard in March, that books couldn't be prohibited but pamphlets could be prohibited.
We also learn--
Justice Ginsburg: But that's not -- the -- the statute that we are involved in, in this case does not cover those.
Mr. Olson: --Unless they are engaged in, quote, "expressed advocacy".
And the other way in which the government has changed its position, if I listened carefully, is what type of corporation might be covered.
The government now says that it wouldn't -- the -- the FEC is now willing to recede from its regulations which explicitly covered this corporation, and I don't know as I stand here today what kind of corporations the government would choose to prosecute.
Remember, the Federal Election Commission, which didn't even have a quorum and couldn't function at all for six months during the important election year of 2008--
Justice Stevens: If the FEC chooses to prosecute only those who do not -- who do not rely exclusively on individual contributions.
Mr. Olson: --Well, that's your question from before.
Justice Stevens: Yes.
I want to see he gets it.
Mr. Olson: And that -- (a), it wouldn't -- this corporation accepted a small amount, $2,000 out of -- out of the funding of this, so that wouldn't solve the problem for my corporation, my client's corporation.
Justice Stevens: But it would solve it for the advertising, and there are two things.
There is the long Hillary document and the advertisements.
It would cover those.
Mr. Olson: If -- but the--
Justice Stevens: And they are the only -- only ones that clearly violate the statute.
Mr. Olson: --My point is that the overbreadth in this statute -- that solves the problem by saying that corporations still can't speak, and if you don't have anything to do with them, you -- you -- they wear a scarlet letter that says C.> ["] If you accept one dollar of funding, then you had better make darn sure that when a check comes in for $100 from the XYZ hardware store in the neighborhood, that it wasn't a corporation that you used to -- to make a documentary about a candidate.
The other way in which the government's position has changed is we do not know--
Justice Stevens: Does that mean you disagree with the NRA's submission?
Mr. Olson: --I -- I submit that it does not solve the problem.
It would lead exactly--
Justice Stevens: If it solved the problem as it would for the advertising, would it be an appropriate solution?
Mr. Olson: --It -- I can't say that it -- if it solved the problem, because it doesn't solve the problem of prohibiting all corporate speech.
And I think -- and I am submitting, Justice Stevens, that that is unconstitutional.
I think what you are suggesting is that some limitation that -- what -- what you were suggesting is not a whole lot different than PAC.
It would lead, I think Justice Breyer was saying, to an accounting nightmare.
It would be--
Justice Stevens: But it is a nightmare that Congress endorsed in the Snowe-Jeffords Amendment.
Mr. Olson: --Well, but the -- but the Wellstone Amendment sort of in a sense repealed it.
Justice Stevens: We have held the Wellstone Amendment literally cannot be applied.
Mr. Olson: Well--
Justice Stevens: We unanimously held that.
Mr. Olson: --I think what -- what the -- my response is that that does not solve the problem of inhibiting--
Justice Stevens: You do not endorse the NRA's position?
Mr. Olson: --No, we don't Justice Stevens, and -- and, as I said, it would not exempt my clients.
The other -- the third way in which the government has changed its position is its rationale for this prohibition in the first place.
Is it corruption?
Is it shareholder protection?
Is it equalization?
There was some dispute.
I heard the Solicitor General say that the equalization rationale was something the government disavowed.
It wasn't what Austin said, the government -- the government said.
Justice Ginsburg: Justice Marshall said that he was not trying to equalize all voices in the political process.
He has a sentence that says, well, that's not what the rationale of this case is.
Mr. Olson: --I don't -- I don't -- with all due respect Justice Ginsburg, the words that jump out at me are the words from page 665 that say the desire to counterbalance those advantages unique to the corporate forum is the state's compelling interest in this case.
That sounds to me like -- like equalization.
I don't know.
I am -- I am representing an individual who wants to speak about something that's the most important thing that goes on in our democracy.
I'm told it's a felony.
I am not -- and I -- I don't know what the rational basis is.
Now I hear about this shareholder -- protecting shareholders.
There is not a word in the congressional record with respect to the -- which was before the Court in the McConnell case about protecting shareholders.
As the Bellotti case pointed out, that would be overbroad anyway because this statute applies to every--
Justice Breyer: Actually I read that sentence that you just read as meaning the corporation is an artificial person in respect to which the State creates many abilities and capacities, and the State is free also to create some disabilities and capacities.
Not a statement about balancing rich and poor.
Mr. Olson: --Well, it -- it -- it strikes me that it is, because it follows the words that say corporations are given unique advantages to aggregate wealth and that we must take away that advantage by equalizing the process.
I think that's the plain meaning but my point I guess is -- if I may finish this sentence.
Chief Justice Roberts: Briefly.
Mr. Olson: My point is that the government here has an overbroad statute that covers every corporation irrespective of what its stockholders think, irrespective of whether it's big, and whether it's general -- a big railroad baron or anything like that, and it doesn't know, as it stands here today two years after this movie was offered for -- to the public for its view, what media might be covered, what type of corporation might be covered and what compelling justification or narrow standard would be applied to this form of speech.
Chief Justice Roberts: Thank you, counsel.
The case is submitted.
Unidentified Justice: The Honorable Court is now adjourned until Monday, the 5th of October at 10 a.m..
Chief Justice John G. Roberts, Jr.: In case 08-205, Citizens United versus the FEC, Justice Kennedy has the opinion of the Court.
Justice Anthony Kennedy: The Bipartisan Campaign Reform Act, which is known is BCRA, was enacted by Congress in 2002, and BCRA, that Act incorporates a prohibition on certain political contributions and expenditures by corporations.
That prohibition is in Section 441b of the Act.
Section 441b prohibits corporations from making certain independent expenditures to support candidates for federal office.
For purposes of this case, the Act prohibits first; independent expenditures for speech in any media that expressly advocates the election or defeat of a candidate for federal office, and second; the Act also prohibits independent expenditures that the Act defines as "electioneering communications" and an election commun – an election -- "electioneering communication" is any broadcast, satellite or cable communication that refers to a clearly identified candidate for federal office and one that is made within either 30 days of a primary election or 60 days of a general election.
This Court's opinion in McConnell versus Federal Election Commission upheld Section 441b and other provisions of the Act against the broad facial constitutional challenge.
McConnell relied upon the Court's earlier decision in a case called Austin versus Michigan Chamber of Commerce.
Now, this case involves a corporation that planned to broadcast the film in the year 2008, which was a presidential election year.
The film was entitled “Hillary: The Movie.”
The film was a commentary on the career and background of then Senator Hillary Clinton who was a candidate in the presidential primaries.
The corporation that made the movie and wanted to broadcast it is the appellant in this case, Citizens United.
Citizens United was concerned that the broadcast would be prohibited by the Act, thus making the corporation and its responsible officials liable for criminal and civil penalties.
So the corporation sought a judicial determination that would allow it to broadcast the film.
The corporation proposed to broadcast the film by video-on-demand, that would’ve allowed viewers to choose the film and then watch it on their own TV sets through cable television and Citizens United proposed to make the movie available through video-on-demand free of charge.
Relying on our cases, the three-judge district court rejected Citizens United constitutional challenge to Section 441b.
The trial court ruled that it would be unlawful under the Act for the corporation to broadcast or promote the movie during the 30 and 60-day periods.
The case came before us on appeal and it was argued last term.
This Court ordered reargument to address whether the Court should overrule either or both Austin and that part of McConnell which addresses the facial validity of Section 441b and our opinion as announced in this session today pursuant to the statute that directs us to expedite constitutional challenges to BCRA and the disposition of those challenges.
Citizens United and some amici have made various arguments to the effect that corporate political speech prohibition in a 441b would be invalid, just as applied to the facts of this case, leaving the question of its facial validity to another day.
There is, for instance, a preliminary argument that the film is something other than the functional equivalent of express advocacy for or against the candidate so that the film should be exempt from the statutory ban under on of our precedents, Federal Election Commission versus Wisconsin Right to Life.
We reject that argument.
The film is quite critical of Senator Clinton.
We agree with the trial court that the film is susceptible of no other interpretation than to argue to the public that she lacked qualifications for the office.
Example of other as-applied arguments are (1), since each broadcast would go to a single household, then the broadcast would not meet the statutory coverage requirement for 50,000 or more persons and (2), another alternative argument is that Citizens United is nonprofit corporation and that the statute could be safe from judicial attack by interpreting the statute or really judicially rewriting it, so it does not include nonprofit corporations.
We conclude that these suggestions, and some of them are made by Citizens United and some by amici, are not sustainable under a fair reading of the statute.
In addition to the difficulties in interpreting the statutes in these ways, the time, expense and uncertainty involved in case-by-case determination to elaborate as applied exceptions, would chill political speech.
So, these difficulties requires us to ask, if the statutory prohibition applicable to corporate political speech is constitutional as a general matter.
Austin versus Michigan Chamber of Commerce, one of this Court's cases, upheld the ban on corporate political speech and as already noted, the McConnell decision in turn relied upon Austin.
We conclude that those precedents now must be reexamined.
The Court has recognized that First Amendment protection extends to corporations.
In accord with this principle, a pre-Austin line of cases forbids restrictions on political speech based on the speaker's corporate identity.
Austin was the first time in this Court's history that a ban on independent expenditures by corporations for political speech was upheld.
If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech.
Austin in its rationale, however, would allow the Government to ban corporations from expressing political views through any media, including media beyond those presented here and in this case such as by printing books.
Political speech is indispensable to decision making in a democracy and this is not less true because the speech comes from a corporation rather than an individual.
Austin's rationale would produce the dangers and unacceptable consequence that Congress could ban political speech of media corporations.
Media corporations are now exempt from 441b's ban on political speech, but they amass wealth like other business corporations, so under Austin the Government could diminish the voice of a media business.
There is no precedent for permitting this under the First Amendment.
Austin interferes with the open marketplace of ideas protected by the First Amendment.
Austin allows the Government to ban the political speech of millions of associations of citizens, thereby silencing the voices that may best represent the most significant segments of the economy.
The Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought.
This is unlawful.
The First Amendment confirms the freedom to think for ourselves.
Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to this, puts us on a course that is sure error.
For the reasons just stated and others explained in some detail in the Court's quite lengthy opinion, we now overrule Austin.
Austin was not well reasoned, experience has undermined it and no serious reliance interests are at stake.
We return to the principles set forth in our pre-Austin line of cases that the Government may not suppress political speech on the basis of the speaker's corporate identity.
Without Austin the Government cannot limit corporate expenditures, corporate independent expenditures.
Section 441b's ban on corporate independent expenditures is therefore invalid and it could not be applied to this film.
Given our conclusion that Austin must be and is overruled, we also overrule that part of McConnell that upheld 441b's restrictions on corporate independent expenditures.
There's a second aspect of this case.
The Act has provisions for extensive disclosure and in addition to challenging the constitutionality of the prohibition on the broadcast of the film, Citizens United argues that these provisions of BCRA are unconstitutional.
We reject Citizens United's challenge to the disclaimer and disclosure provisions.
Those mechanisms provide information to the electorate.
The resulting transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages.
If an association offers evidence that its members will face threats or reprisals, it may be able to show that the disclaimer and disclosure requirements are unconstitutional as applied to that association, but Citizens United has offered no evidence here of threat or reprisals.
The judgment of the District Court is reversed with respect to the constitutionality of Section 441b's restrictions on corporate independent expenditures.
It is affirmed with respect to the disclaimer and disclosure requirements.
The case is remanded for further proceedings consistent with this opinion.
The Chief Justice's filed a concurring opinion in which Justice Alito has joined.
Justice Scalia has filed a concurring opinion in which Justice Alito has joined and in which Justice Thomas has joined in part.
Justice Stevens has filed an opinion concurring in part and dissenting in part in which Justices Ginsburg, Breyer, and Sotomayor have joined.
Justice Thomas has filed an opinion concurring in part and dissenting in part.
Justice John Paul Stevens: I have filed a separate opinion that Justice Ginsburg, Justice Breyer and Justice Sotomayor have joined.
We agree with Part IV of the Court's opinion upholding the reporting and disclosure provisions of the Bipartisan Represent -- Bipartisan Campaign Reform Act of 2002 or BCRA.
We dissent from the Court's decision to strike the down a key part of that statute, Section 203 and to overrule both Austin against Michigan Chamber of Commerce and a portion of McConnell against the FEC.
As one of the joint authors of the opinion in McConnell, I must emphatically disagree with today's all changing decision.
When Justice O'Connor and I were working on our opinion in that case, we thought that two important propositions of law were so well settled that they needed no special defense.
The first, that Congress may place special restrictions on the use of corporate funds in election campaigns, had been generally recognized for a century or more.
In the second, that there is a relevant distinction between a corporate speech about general issues on the one hand and corporate speech specifically advocating the election or defeat of a candidate on the other, was not only established by our earlier cases but had also helped shape the extensive debates in Congress that lead to the enactment of the statute.
When we responded to the numerous facial chance of challenges raged -- raised in the McConnell case, we had in front of us a record that concluded detailed findings by the district court judges along with literally thousands of pages of evidence from both the district court record and the proceedings before Congress.
The case the Court decides today is very different.
Unlike McConnell, this appeal did not come to us as a facial challenge.
The plaintiff did not dispute either of the propositions of law that I have identified and the trial court did not take any evidence or make any findings that related to the important issues, this Court now decides.
While the Court tells us that we are asked to reconsider Austin and McConnell, it would be far more accurate for them to say, "We have asked ourselves to reconsider those cases and to do so, without the benefit of any evidentiary record that might shed light on the issues that the Court addresses."
While our written dissent is extremely long, this morning I shall summarize just five major flaws in the Court's opinion.
First, the Court repeatedly declares that corporations have been banned from enter -- engaging in political speech.
In reality, the expenditure limits imposed by the statute are much narrower than the Court acknowledges.
The appellant itself provides a good example.
Citizens United is a wealthy nonprofit corporation that runs a political action committee or PAC with millions of dollars in assets.
Under BCRA, it could have used those assets to televise and provote -- promote “Hillary: The Movie,” wherever and whenever it wanted to.
It also could have spent unlimited suns -- sums to broadcast the film at anytime other than the 30 days before the last primary election.
It could have avoided regulation altogether if it had simply declined to take money from for-profit corporations.
All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury instead of the funds in its PAC to pay for TV broadcast during a 30-day period.
There are many ways in which that question could have been answered without rewriting the law relating to campaign expenditures by for-profit corporations and unions.
The Court's second error is its assumption that the First Amendment absolutely and categorically prohibits any regulation of speech that distinguishes on the basis of a speaker's identity, including the identity as a corporation.
In a variety of contexts, we have held that speech can be regulated differentially on account of the speaker's identity, when speaker is understood in categorical and un -- inter -- institutional terms and when the distinctions are based on a legitimate governmental interest.
The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners and its own employees.
The Court's new rule, however, would have accorded the propaganda broadcast to our troops by Tokyo Rose during World War II, the same threshold protection as a speech by General McArthur.
More perm – pertinently, it would appear to afford the same protection to multinational corporations, controlled by foreigners as to individual Americans.
As Aristotle recognized in the poetic, the identity and the insinuative of a speaker are always relevant when evaluating his speech and indeed it is that insight that motivates the disclaimer and disclosure provisions that the Court upholds today.
The Court's premise is particularly misguided when it is the identity of corporations that is at issue.
Simply put, corporations are not human beings.
In the context of an election to public office, the distinction between corporate and human speakers is significant.
Corporations cannot vote or run for office because they are managed and controlled by nonresidents, their interest may conflict in fundamental ways with the interest of eligible voters.
As the Court has long resembled the distinctive legal attributes (ph) of corporations create distinctive threats to the electoral process.
The rule announced today that Congress must treat corporate speakers exactly like human beings in the political realm represents a radical strength -- a radical change in the law.
The Court's third error is its claim that Austin and McClain, excuse me, Austin and McConnell are -- were aberrations on our First Amendment tradition.
The Court has the point exactly backwards.
At the founding, Americans took it as a given that corporations could be comprehensibly regulated in the service of the public welfare.
They held a cautious view of corporate and a narrow view of corporate rights in a conceptually -- conceptualized speech in individualist terms.
Even if we thought that the freedom of the speech was intended to describe any entity that could print pamphlets and newspapers is doubtful that the framers believed the freedom of speech would extend to corporations who cannot themselves engage in speech and is even more doubtful that when they ratified the First Amendment they thought they were laying down a principle that could be used to insulate corporations from even modest restrictions on electioneering pro -- expenditures.
While the evidence from the founding is rather scarce, more recent history is crystal clear.
Congress has im -- has placed its special limitations on campaign spending by corporations ever since the 1907 when it responded to the rhetoric of Theodore Roosevelt and enacted the Tillman Act.
It had specifically limited the independent expenditures of corporations on candidate elections ever since the Taft-Hartley Act of 1947.
Many states have had similar laws on the books for a comparable period of time, if not longer.
Before today, no Court opinion, not one had ever questioned the validity of these laws.
To the contrary, as Justice Rehnquist wrote for a unanimous Court in 1982, we have consistently rules and I am quoting that, "Congress careful legislative adjustment of the federal electoral laws in -- in a cautious advantage, advanced step-by-step to count for the particular legal and economic attributes of corporations, warrants considerable deference and that it reflects a permissible assessment of the dangers imposed by those entities to the electoral process."
We have unanimously concluded that these laws and again I am quoting, "Reflect a permissible assumption of the dangers inpro -- imposed by corporations to the electoral process and we have accept -- accepted the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.
In a long line of cases, we have likewise concluded that the ability to form political action committees reflects -- provides corporations with a constitutionally sufficient opportunity to finance electioneering, at the same time that it protects the interest of dissenting shareholders.
Nothing has changed since 1920 that justifies a reexamination of the -- of those conclusions.
The majority rests virtually its entire doctrinal argument on two cases; Buckley against Valeo decided in 1974 and First National Bank of Boston against Bellotti decided in 1988 -- 1978.
In 1975, the cor -- the bar on corporate contributions and expenditures have become such an accepted part of campaign finance regulation that when a large number of corporations challenged virtually every aspect of the 1971 Federal Campaign Act in Buckley, no one even bothered to argue that the bar is such was unconstitutional.
And in 1970 when the Court decided Bellotti, no member of the Court disagreed with the express statement in Justice Powell's majority opinion that our holding on corporations' right to speak on issues of general interest implied no comparable right in the quite different context of candidate elections.
In light of this history, it is clear that Austin was well supported by our earlier cases.
The only novel development in Austin were the sleeping -- sweeping attacks on the State of Michigan's corporate expenditure, restriction and dissents filed by Justices Scalia and Thomas.
Those dissents planted the seeds that have flowered into the majority's stunning holding today.
The Court's fourth error is its assumption that there is only one governmental interest that counts in the area of campaign finance, so called quid pro quo corruption and appearance of such corruption.
In my judgment, this crabbed approach disregards our constitutional history in the functional demands of a democratic society.
On numerous occasions, we have recognized Congress' legitimate interest in preventing the money that is spent on elections from exerting undue influence on an officeholder's judgment and creating the appearance of such influence beyond this sphere of quid quo pro relationships.
Corruption can take many forms, but as Justice Souter has explained in more than one opinion, the difference between selling a vote and selling access as a matter of degree not kind, and selling access is not qualitatively different from giving special preference to those who spent money on one's behalf.
Corruption operates along a spectrum and the majority's apparent belief that quid pro quo arrangements can be lately be demarcated from other improper influence, does not accord with the -- the theory or reality of politics.
It certainty does not accord with the record Congress developed in passing BCRA, a record that contained detailed findings about the corrupting consequences of corporate and union independent expenditures in the years preceding the law's passage and which amply supported Congress' determination that the basic integrity of our political system as well as the public's faith in that system was in jeopardy.
If there were strong evidence to show that the new law was intended or would serve to stifle political competition, then we would have reason to be skeptical of Congress' finding, but there is no such evidence and the majority opinion never even mentions the issue.
Congress recognized in the BCRA that unregulated corporate spending on elections can create threats to Republican Government that are far more severe than an occasional bribe.
The majority's fifth error is its assumption that enlightened self-government can arise only in the absence of regulations such as Section 203.
Yet while the Court's opinion is full of stirring tributes to the virtues of free speech, the majority fails to look closely at or in fact to consider at all, the distinctive attributes of corporate expenditures that dramatically changed the First Amendment equations.
Because corporations are not natural persons, restrictions on their electioneering pose a lesser threat to the interest of speakers.
Corporate speech is a derivative speech, speech by proxy.
When a business corporation places an ad endorsing or attacking a particular candidate, it is not even clear who is speaking, given that the corporation is organized with the goal of maximizing shareholder value and must engage the electoral process with that goal in mind.
Indeed the McConnell records shows that many corporations routinely gave money to both candidates in political campaigns.
Taking away the ability of a corporation to use its general treasury's funds for some of those ads and no one's autonomy, dignity or political quality has been impinged upon in the least.
So on the -- a speaker's side of the equation, corporate expenditures are obviously and profoundly different from individual expenditures.
The majority brushes past this point and declares that Section 203 offends the interest of listeners by reducing the total amount of speech.
In reaching this conclusion, the majority ignores that in numerous respects, corporate electioneering has a potential to distort public debate in ways that undermine rather than advance the interest of its listeners.
Unregulated corporate electioneering can drown out the voices of real people.
It can decrease listener's eyes -- exposure to relevant view points.
It can generate cynicism and disenchantment.
In can chill out the speech of those who hold office and it decrease the willingness and capacity of citizens to participate in self-government.
At the least, a democratically elected legislature is entitled to credit these serious and well recon -- recognized concerns.
The Court's First Amendment analysis is based on the metaphor of an open parket -- marketplace of ideas, but the Court never actually engages with the reality of how that marketplace operates or indeed with virtually any practical concerns, whatever.
The Court's decision is at war with the views of generations of Americans who have worked to improve our campaign spends -- campaign finance system and thus to safeguard the integrity of the electoral process with the views of many of the state legislatures that over many decades have enacted laws similar to the Michigan statute we upheld in Austin with the views of the Congress that enacted the Tillman in 1907, the Congress that enacted the (Inaudible) -- Taft-Hartley Act in 1947, the Congress that have acted the Federal Electorate Campaign Act in 1971 and the Congress that enacted the Bipartisan Campaign Reform Act of 2002 too and with the views and expressed by the overwhelmed majority of Justices who served on this Court.
The majority's rejection of the long standing consents -- consensus on the need to limit corporate spending -- spend -- corporate campaign spending.
In the words Justice White once used, elevates corporations to eleven of -- level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regular -- regulatory legislation thought to unfairly impinge upon established economic interests.
At bottom, the Court's opinion is just a rejec-- rejection of the common sense of the American people as expressed in 1907 in the Senate Report on the Tillman Act which observed that the evils of the use of corporate money in connection within political elections are so generally recognized that the committee be -- deems it unnecessary to make any (Inaudible) in favor of the general purpose of this measure.
What was common sates -- sense in 1907 remains common sense for -- common sense today.
While American democracy is still imperfect, few outside the majority of this Court would have thought its flaws included a shortage of corporate money in politics.