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Almost Everything You Need to Know About Citizens United v. FEC

With help from Oyez, this blog post serves as my go-to all-I-have-to-say end-of-story post about Citizens United v. Federal Election Commission.  As controversy continues years after the Supreme Court’s decision—with commentary continually indicating few understood, much less read, the opinion in the first place—it’s here I would like to illustrate exactly what was at stake in the case.  This is an excerpt from about a half hour into the oral arguments for CU.

Use the player and read along with the transcript below if you’d like.

Artist Name - CU_excerpt.mp3

In its decision, the Supreme Court ruled that corporations and unions could express political opinions without fear of suppression or even burdensome political committee requirements (a burden the FEC still arbitrarily applies to grassroots groups).  Specifically, the FEC had banned the broadcast of Hillary: The Movie over pay-per-view since Citizens United was a nonprofit corporation.  In this excerpt, Justices Alito and Kennedy nail down that constitutionally, if the FEC can ban the broadcast of a pay-per-view movie, it can probably ban books as well.  That’s right: the United States government argued it could ban books.

For the hubbub about the Citizens United decision undermining democracy, this excerpt should put such rhetoric to rest.  Free distribution of books, movies, and other messages are the sign of a healthy society, nothing less: 

Justice Alito: 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 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.  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, for media—

Justice Alito:  No, 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, but that question is obviously not presented here.  That—the other two—

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 this question—

Justice Kennedy:  Just to make it clear, it’s the government’s position that under this 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 can be prohibited under the Constitution and perhaps under this statute?

Mr. Stewart:  It can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book.  It could be required to use, to raise funds to publish the book using its PAC.

Justice Kennedy: If it has one name, one use of the candidate’s name, it would be covered, correct?

Mr. Stewart:  That’s correct.

Justice Kennedy:  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—

Justice Kennedy:  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—and delete to one side, the question of—

Justice Kennedy:  Right, right, forget the—

Mr. Stewart: —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”—

Justice Kennedy:  No, no, take my hypothetical. It doesn’t say at the outset. It runs—here is a—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.

Justice Kennedy: 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.

——

I have to hand it to Oyez, hosted by Chicago-Kent College of Law.  The site features, among many resources, audio clips and transcripts of oral arguments at the United States Supreme Court.  Visitors can even clip audio excerpts and download them from the website to share, as I’ve done here.  In addition to providing legal education to one Benjamin Barr (Class of 2001), Oyez will always leave me impressed with Chicago-Kent.

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