A Response to Ken Vogel

January 15, 2015   •  By Zac Morgan   •    •  
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This Wednesday, January 21st, CCP will be holding a conference on Citizens United v. FEC’s fifth anniversary. As we all know, Citizens United struck down bans on corporate and union political activity, and combined with the en banc D.C. Circuit’s unanimous opinion in SpeechNow.org v. FEC[1] just a few months later, allowed outside groups other than the media to discuss candidates free of federal contribution limits.

In our open invitation to the conference, which will be hosted by the Cato Institute, CCP stated: “Should the government have the power to ban a book if it contained any political advocacy? It took that position, until the Supreme Court ruled in Citizens United v. FEC that Congress could not take away peoples’ political speech rights when they band together in corporations or unions.”

Ken Vogel of Politico objected to that statement on Twitter, claiming “[t]his is not really accurate.” He grounded this objection on the ground that then-Solicitor General “[K]agan made clear that the statute at issue in [C]itizens [U]nited did not cover books.”

Of course, Supreme Court arguments and opinions are not limited to 140 characters. Let’s start with the text of the Citizens United majority opinion itself.

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations–including nonprofit advocacy corporations–either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.

Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

Citizens United v. FEC, 558 U.S. 310, 337 (2010) (emphasis supplied).

So, whatever the views of then-Solicitor General Kagan, the majority opinion explicitly reads the the law as permitting book-banning.

Citizens United, unlike most Supreme Court cases, was argued twice. At the first argument, Deputy Solicitor General Malcolm L. Stewart represented the government. The following exchanges took place:

JUSTICE ALITO: Do you think the Constitution required Congress to the 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 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 preexisting 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 corporate to publish it using its –

JUSTICE ALITO: Well, most publishers are corporations. And a publisher that is a corporation could be prohibited from selling a book?

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: 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 is says vote for X, that would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision.

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: Take my hypothetical. It doesn’t say at the outset. It 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 could you could ban it?

MR. STEWART: If they didn’t, we could prohibit the publication of the book using the corporate treasury funds.

Tr. Oral Arg., Citizens United v. FEC, No. 08-205, pp. 26-30 (March 25, 2009).

So, the government—exhaustively—argued that the Federal Election Campaign Act (FECA) and the Bipartisan Campaign Reform Act (BCRA) could provide the government with the legal authority to ban books, at least if they were funded by a publisher instead of a PAC.

Of course, this is not Mr. Vogel’s point. He rests his argument on the ground that then-Solicitor General “[K]agan made clear that the statute at issue in [C]itizens [U]nited did not cover books.”

But that’s not precisely the case either. She certainly argued that “[t]he government’s answer has changed.” Tr. Oral Arg., Citizens United v. FEC, p. 64, No. 08-205 (Sept. 9, 2009). This assertion—greeted by laughter, according to the transcript—was followed by the argument that BCRA § 203 only applied to broadcast media, notwithstanding Justice Kennedy’s earlier query about Kindle e-books.

But then-General Kagan, constrained by the law, did assert that [then-2 U.S.C. § 441b, the general ban on corporate electioneering] “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 [sic] as-applied challenge to any attempt to apply 441b in that context.” Id.

Strictly speaking, the government never backed down from the idea that a book with minimal political advocacy  could be prohibited—such as Chief Justice Roberts’ hypothetical posed at the first oral argument. They simply suggested that a book published might have a good case if it challenged the statute.

The Citizens United Court noticed this loophole: “The Government also suggests that an as-applied challenge to § 441b’s ban on books may be successful, although it would defend § 441b’s ban as applied to almost every other form of media including pamphlets. The Government thus, by its own position, contributes to the uncertainty that § 441b causes. When the Government holds out the possibility of ruling for Citizens United on a narrow ground yet refrains from adopting that position, the added uncertainty demonstrates the necessity to address the question of statutory validity.” 558 U.S. at 333.

Thus, the Court, “[i]n the exercise of its judicial responsibility, [found it] necessary for the Court to consider the facial validity of § 441b. Any other course of decision would prolong the substantial, nationwide chilling effect of § 441b’s prohibitions on corporate expenditures.” Id.

(And, in any event, it’s certainly an interesting question as to where the government would have drawn the line between a “pamphlet” and a “book”!)

Fortunately, thanks to the Citizens United opinion, such line-drawing, and the need to engage in protracted, piecemeal litigation to eliminate an unconstitutional ban on corporate speech, is unnecessary.

We hope that Mr. Vogel will be able to make our event, and we do thank him for publicizing it for us.

[1] Brought by an outside group which affirmed that it would not take corporate contributions.

Zac Morgan

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