On Wednesday, the Supreme Court will hear reargument in Citizens United v. FEC and hear argument on whether the Court should overturn its decision in Austin v. Michigan Chamber of Commerce (1990) and portions of McConnell v. F.E.C. (2003) upholding government limits on corporate funding of express advocacy in campaigns. SCOTUSBlog previews the case here.
There has been a fair bit of speculation about why the Court sought reargument, and specifically why it asked for briefing on Austin. Many have pointed to an exchange during the oral argument during which the federal government's attorney argued that the government could constitutionally prohibit a corporation (or union) from paying for the publication of a book urging the election or defeat of a candidate for office. Insofar as this represents the logical extension of Austin, perhaps this prompted some of the justices to want another look at Austin.
NYU's Richard Pildes suggests the seeds were planted earlier, perhaps during McConnell, in which the federal government relied very heavily on Austin in defending the McCain-Feingold campaign finance law. As he posted to the Election-Law listserv last week:
In the 4-hour argument in the McConnell case, involving the constitutionality of BCRA, the United States invoked Austin repeatedly as the answer to every constitutional question the Court had about the new limits on corporate/union electioneering. That approach culminated, toward the end of the argument, in the following exchange. At this time, Supreme Court transcripts did not identify Justices by name, but I believe that Justice Scalia is asking the question here; Mr. Clement is Paul Clement, the Principal Deputy Solicitor General at the time who is defending BCRA on behalf of the United States:QUESTION: You really like Austin, don't you?To get a sense of what led up to this culminating moment, I will include a few other brief excerpts that show the extent to which the United States invoked Austin in response to many of the Court's questions about regulation of corporate electioneering. For example, here is an exchange on the government's justification for the statute's different treatment of media corporations from other corporations:
MR. CLEMENT: I love Austin. It's binding precedent. I don't, I mean, as much as the plaintiffs don't seem to like the case, I don't really hear them asking this Court to overrule it.MR. CLEMENT: I don't know about that. What I do know is that media corporations are exempted for the same reason they've always been exempted from the law, which is that they do pose a different situation, a difference of kind. And this Court -Here is another answer to the Court:
QUESTION: And why is that? Why is that? I don't understand that.
MR. CLEMENT: I mean, I think the traditional role of media companies has been quite different than the traditional role of other companies.
QUESTION: What case do you have that we can distinguish speech based on the identity of the speaker? Outside of this area?
MR. CLEMENT: Well, I don't know. I've been focused on this area for the last couple of weeks, Justice Kennedy, and the case that comes to mind is Austin, where the Michigan statute before this Court -MR. CLEMENT: . . . many of the arguments that are being raised in opposition to this statute are the arguments of the dissenters in Austin, not the arguments of the majority opinion in Austin. And I think that's an important point.Similarly, here is the answer to questions concerning how to justify the distinction, which some Justices challenged as "artificial," being election and issue ads:MR. CLEMENT: Justice Scalia, I don't think it's artificial distinction. In any event, it's not a distinction I'm drawing. It's a distinction that this Court drew in Austin when it distinguished the situation it had before it in Belotti, where it said that a corporation facing an absolute ban, not a separate segregated fund requirement but an absolute ban in participating in a referendum, this Court held that unconstitutional. In Austin, this Court said that limits on express advocacy in the context of a candidate campaign triggered different interests, and in that context, Congress has a legitimate ability to deal with the corrosive and distorting effects of aggregate corporate wealth and the problems with diverting shareholder and member money to political causes with which they disagree.[Reprinted with permission.]
Prof. Pildes suggests that the content can help provide some additional perspective on the Court's decision to reconsider Austin.