Prof. Hayward’s take on Citizens United v. FEC

“Professor,” formerly “The Skeptic,” Allison Hayward’s take on today’s argument (posted with permission from an Election Law Listserv post):

FYI: A transcript of the argument is here; audio is here.

Several of the early birds, myself included, presumed that a single rehearing featuring a first-time SG, Ted Olson, a new Justice on the bench, AND a challenge (pretty much) to 2 USC 441b would be a high attendance event. Which it was, but I still think it remarkable that the early Bar Line crowd was lighter than WRTL. Are people still out of town? Pikers.

Hint to the Court Clerk. It’s called Fandango. Look into it.

Real power in Washington is when your mere presence brings the nation’s Solicitor General to your side for a quick, affectionate hello. All hail Nina Totenberg.

Other VIPs in attendance? Sens. John McCain and Russ Feingold (warmly welcomed by former Solicitor General Ted Olson — is this a new job trait?) Chris Dodd arrived later. Ted Olson, and his hair, which we love. We also liked Sonia Sotomayer’s collar treatment, which seemed well structured and flattering. Let’s face it – judicial robes are hard to pull off.

New seat assignments — and Scalia and Thomas get to sit together, with Chief Justice Roberts next to Scalia. Justice Breyer, now on the viewer’s right, demonstrated that he can brace his head in worried angst with his left hand as well as his right. Idle speculation preceding the argument was that his right hand would dominate, and he would end up addressing Justice Sotomayor, and the wall. This did not occur, to everybody’s great relief.

Once the argument began, it became clear that some things weren’t clear:

— There’s a separate federal law that prohibits foreign nationals from making contributions or expenditures in any election — federal, state, or local. That law is not at issue here, and the arguments about foreigners are different. I think the law has problems, if anyone were to challenge it, but so do a lot of things. Nevertheless, we were treated to several minutes of speculation about this. What a bargain, eh?

— Some Justice(s) still has/ve no idea what an “electioneering communication” is. Which, since apparently this may all fall apart in short order, is not something they should take time now to learn.

— Corporations aren’t people. Nobody thinks they are. This observation does nothing toward solving the issue before the Court. Sorry.

— Contributions and expenditures are not the same thing. Nobody thinks they are. Never have been. To think they ever were (even in the ’40s!) is to drink Bob Taft’s Kool-Aid. Ever hear of the Anti-Saloon League? Heh.

— When the SG speaks for the government, the Court is not that interested in what her personal construction of a case or statute might be. Not that she’s wrong, it’s just not appropriate. Moreover, no amount of big, juicy puffball questions about the record generated in McConnell can substitute for an advocate who seemed not in full mastery of either the legal material or of the Court’s atmosphere and conduct. Moreover, the fact General Kagan walked back into the “book” briarpatch after the first argument, well, … jeez.

Other incidents of note:

Chief Justice Roberts and Floyd Abrams both made use of an amicus brief I wrote. Let me say that I am sincerely touched and very grateful.

General Kagan made use (how direct I am not sure) of Adam Winkler’s work. He has a copyright on “other people’s money” in this context, no?

Prognostication:

5-4 for Citizens United.

Cross fingers that there is one opinion for the Court joined by five justices. Then we will have something to work with. That scenario would be Scalia, Alito, Kennedy, articulating the interests that will be recognized as compelling when restricting corporate political expenditures, and finding inadequacies here or in tailoring.

Not so good: Scalia, Thomas and Kennedy want to jettison 441b, Roberts and Alito want some lesser solution, which shows more restraint, to be sure, but leave the fight to another day. Kennedy constructs something new. Citizens United wins, but everybody else loses.

Even so, there will be dissents!

Breyer: Will say something about how parties get screwed.

Sotomayor and Ginsburg will join an opinion that upholds 441b and the district court in Citizens United. It will not acknowledge that what is sauce for the corporation is sauce for the union.

Stevens will write separately and castigate modern politics.

George Mason University Assistant Professor of Law Allison Hayward is a board member of the Center for Competitive Politics.

The Center for Competitive Politics is now the Institute for Free Speech.