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Justice Stevens Loves the NRA:

At least today he did. This morning the Court heard reargument in Citizens United v. FEC. At issue is section 203 of the McCain-Feingold campaign speech restriction law, which prohibits corporations and unions from buying TV ads (and communicating in certain other media) which mention a federal candidate during the 60 days before a general election, and the 30 days before a primary. During oral argument last spring, the government had asserted that it would be constitutionally permissible for Congress to outlaw corporate/union speech in any medium (e.g., a book) during the pre-election speech restriction period.

The Court asked for re-argument and supplement briefing on whether it should over-rule the relevant part of McConnell v. FEC (2003)(which had upheld McCain-Feingold) and Austin v. Michigan Chamber of Commerce (1990)(corporate speech can be suppressed in order to relatively amplify other voices).

Scotusblog provides a summary and analysis . As Scotusblog explains, the Court seemed unanimous that the relevant portion of McCain-Feingold was constitutionally defective, and the question was whether the Court could address the problem in a narrow way, while preserving some of the precedents in question.

The NRA brief had argued that the Court should over-rule Austin/McConnell to the extent that they ban advocacy by non-profit corporations funded by individuals, or the Court should over-rule both cases as applied to all corporations. Justice Stevens liked the NRA's first alternative. However, it appeared that five Justices wanted to go further.

The briefs are here. Among them are briefs from two other groups which made me proud to be a member: Cato Institute (focus on right of association, and anonymity); Cato supplemental brief (stare decisis principles support over-ruling Austin and part of McConnell, and returning to the 1976 Buckley precedent); ACLU Supplemental (the Court should find section 203 of McCain-Feingold facially unconstitutional; this would over-rule part of McConnell, and would not require the Court to over-rule Austin).

Gabriel McCall (mail):
"Scotusblog provides a summary and analysis from Scotusblog."

That does seem appropriate.


[DK: Although, as you point out, the quoted words are a paragon of accuracy, I corrected them. Thanks.]
9.9.2009 2:55pm
Houston Lawyer:
I'm waiting on the hating on the NRA for supporting First Amendment rights as well as Second Amendment rights.
9.9.2009 3:12pm
Mark N. (www):
Would the second alternative hold that all organizations, of any form, have fundamental First Amendment rights? Phrased differently, that Congress may not create limited forms of organization that, if freely chosen to incorporate under, come with restrictions? Would that, for example, strike down the restriction on 501(c)(3) charities engaging in political advocacy?

It seems that, while it's plausible the Court could arrive at that conclusion, it's not entirely necessary--- the right to free association doesn't necessarily imply a right to associate via all possible routes of incorporation for all purposes.
9.9.2009 3:23pm
martinned (mail) (www):

stare decisis principles support over-ruling Austin and part of McConnell

Maybe that's not the best way to put it...
9.9.2009 3:29pm
BZ:
@MarkN:
Although, at first read/listen, that was where the discussion today was headed, it would not be that easy. The restriction on charities' electioneering is not specifically a First Amendment issue, but a tax one. The question, articulated in a number of cases, is whether the Treasury must "subsidize" the charities' speech by providing a "tax expenditure." The charities are free to speak on any topic, but if they do, the Treasury will not subsidize the speech. Thus, for example, Justice Breyer's example was of a 501(c)(4) organizations; c4s are permitted to electioneer up to 50% of their budget, but if they do, they must pay a tax on the lesser of their political expenditures or their investment income.

And it was an interesting OA.
9.9.2009 4:31pm
ArthurKirkland:

I'm waiting on the hating on the NRA for supporting First Amendment rights as well as Second Amendment rights.


If the NRA supported the expression in Bong Hits 4 Jesus, or any other case in which its support of the First Amendment extended beyond the NRA's direct self-interest, I will consider the NRA a supporter of the First Amendment. Otherwise, it sits next to Don Blankenship in the ranking of "Great Defenders Of First Amendment Freedoms."
9.9.2009 4:38pm
martinned (mail) (www):

If the NRA supported the expression in Bong Hits 4 Jesus, or any other case in which its support of the First Amendment extended beyond the NRA's direct self-interest, I will consider the NRA a supporter of the First Amendment. Otherwise, it sits next to Don Blankenship in the ranking of "Great Defenders Of First Amendment Freedoms."

I don't know enough about the legal details of the NRA to be sure, but I think if the NRA used its funds to argue a first amendment issue "beyond its direct self-interest", that would be a grandmother of a legal nightmare. (Ultra vires actions by a board of an incorporated entity, misuse of funds, etc.)
9.9.2009 4:49pm
Per Son:
"If the NRA supported the expression in Bong Hits 4 Jesus, or any other case in which its support of the First Amendment extended beyond the NRA's direct self-interest, I will consider the NRA a supporter of the First Amendment. Otherwise, it sits next to Don Blankenship in the ranking of "Great Defenders Of First Amendment Freedoms."

Uh, and why would the NRA argue in Bong Hits? The NRA has only a certain number of issues and time to litigate its agenda, and arguing in favor or against the free speech rights of students is probably outside of their mandate.

The NRA almost always weighs in on any cases involving limitations on campaign spending and lobbying, which seems quite fit.
9.9.2009 5:30pm
SGD (mail):
Well, the NRA is so loveable.
9.9.2009 5:42pm
einhverfr (mail) (www):
The more I think about this case the more complex it gets. It is fairly clear who should win the lawsuit but the basis for the win are somewhat unclear. I suppose I side with the ACLU and against the NRA in this specific issue.

I also think there are many clearly Constitutional measures that could be made in election communication law, but I think the current statute under discussion is facially overbroad. I hope the court sees it that way.
9.9.2009 6:29pm
therut (mail):
I think the NRA is very lovable. They have helped me sleep better at night and feel safe through the day. So Yeah, they are lovable. No one else in the legal field that I know of would care about a single woman traveling say 800 miles by herself. The NRA does. NOW and the ACLU and liberals could care less about my life. The NRA does. My father and MOTHER also cared about my life enough to teach me to own and shoot a firearm. The NRA protects that right for me.
9.9.2009 7:15pm
Brett Bellmore:
there are many clearly Constitutional measures that could be made in election communication law,


I tend to agree, were we talking about the state level. The problem with federal campaign communications law is the lack of any enumerated power basis. And, no, the power to regulate the time, place, and manner of elections isn't remotely the same as the power to regulate campaigns, which are speech and printed matter whose subject merely happens to BE elections. Just because Congress has the power to regulate something, doesn't imply Congress has the power to regulate what people SAY about that something.
9.9.2009 7:26pm
Mark N. (www):

The problem with federal campaign communications law is the lack of any enumerated power basis.

If we're talking about corporations that do business only (or at least primarily) in their state of incorporation, and are purchasing advertising only on media within their state, I agree. But if, say, a Delaware-chartered corporation, which primarily does business in California, is purchasing advertisements in Colorado, isn't that pretty clearly interstate commerce that may be federally regulated? I'm not a fan of overreaching interstate commerce to the extent of something like Raich, but that doesn't seem to be nearly the same sort of situation.
9.9.2009 8:40pm
Tim Nuccio (mail) (www):

isn't that pretty clearly interstate commerce that may be federally regulated?


Not when such regulation "pretty clearly" violates its first amendment rights. You have a clash of between the "rights" of the corporation and an enumerated power of Congress. It should be "pretty clear" that "rights" trump "power."
9.9.2009 10:38pm
Cornellian (mail):
At issue is section 203 of the McCain-Feingold campaign speech restriction law, which prohibits corporations and unions from buying TV ads (and communicating in certain other media) which mention a federal candidate during the 60 days before a general election, and the 30 days before a primary.

Does the law only prohibit you from buying the ad during this period or from airing an ad you have purchased? Could you buy an ad on day 61, then air it two days later on day 59?
9.9.2009 11:06pm
Mark N. (www):

Not when such regulation "pretty clearly" violates its first amendment rights. You have a clash of between the "rights" of the corporation and an enumerated power of Congress. It should be "pretty clear" that "rights" trump "power."

That's true; I was responding to Brett Bellmore's claim that campaign-finance regulation fails at the outset for failing to fall within an enumerated power--- and thus wouldn't even need to proceed to analyzing whether it violates a first-amendment right. Though after having glanced through the precedent, it looks like it is the conduct-of-elections clause rather than the commerce clause that's been relied on.
9.9.2009 11:08pm
ArthurKirkland:
I guess we have reached consensus: The NRA is no friend of the First Amendment, except by invadvertence. I can live with that assessment.
9.9.2009 11:42pm
David M. Nieporent (www):
Yes, in the same way that we have reached consensus that Kirkland is trolling.
9.10.2009 4:56am
Brett Bellmore:

Does the law only prohibit you from buying the ad during this period or from airing an ad you have purchased? Could you buy an ad on day 61, then air it two days later on day 59?


It prohibits you from buying, at any time, an ad that will air during that period.

Mark, I'll agree that, under current commerce clause doctrine, Congress could reach a great deal of corporate expenditures on printing and speech. This is only to say that current commerce clause doctrine is designed to gut the constitution's limit of Congress to enumerated powers.
9.10.2009 6:52am
Brett Bellmore:
Oh, and the ACLU is no friend of the 2nd amendment, and generally manages to avoid even inadvertence. You may have noticed that only one of these organizations is lying about defending the entire Bill of Rights. The other is quite upfront about having limited objectives.
9.10.2009 7:46am
Mikee (mail):
The comments above miss one of the primary issues regarding the McCain-Fiengold law: restriction of political speech is anathema to the proper functioning of a republic. This law has been and continues to be a disgrace to this country.
9.10.2009 9:08am
yankee (mail):
stare decisis principles support over-ruling Austin

You're "proud" of associating yourself with this argument?
9.10.2009 11:05am
ArthurKirkland:

The comments above miss one of the primary issues regarding the McCain-Fiengold law: restriction of political speech is anathema to the proper functioning of a republic. This law has been and continues to be a disgrace to this country.

Some people disliked "forced political speech," though. Should a shareholder be entitled to "opt out" (much like union members) from funding corporate political activity if he disagrees with the corporation's ideology?
9.10.2009 12:53pm
George the Lurker (mail):
AK

Some people disliked "forced political speech," though. Should a shareholder be entitled to "opt out" (much like union members) from funding corporate political activity if he disagrees with the corporation's ideology?

Stock ownership is voluntary, union membership generally isn't - at least if one wants to keep a job in a closed shop.
9.10.2009 4:09pm
ArthurKirkland:
Owning stock in a particular company is voluntary; if you don't like the ownership conditions -- judgment, profitability, experience, personnel -- associated with the company, don't own the stock.

Working for a particular company is voluntary; if you don't like the employment conditions -- union, no union, compensation, management -- associated with the company, work somewhere else.
9.10.2009 7:06pm
Oren:

Some people disliked "forced political speech," though. Should a shareholder be entitled to "opt out" (much like union members) from funding corporate political activity if he disagrees with the corporation's ideology?

This is a misleading argument based equating "corporation" with "for-profit public corporation".

Many of the corporations affected by BiCRA are, in fact, privately-owned non-for-profit corporations whose sole function is political advocacy. The most famous example is Wisconsin Right to Life (of FEC v. WRTL) a corporation whose entire purpose would be frustrated by BiCRA.
9.10.2009 7:12pm
ArthurKirkland:
One way to address that point would be to distinguish for-profit corporations (probably including medical centers and similar NINOs -- Nonprofit In Name Only) from not-for-profit corporations. I have not thought this through, but it might be worth considering.
9.10.2009 7:52pm
einhverfr (mail) (www):
ArthurKirkland:

Owning stock in a particular company is voluntary; if you don't like the ownership conditions -- judgment, profitability, experience, personnel -- associated with the company, don't own the stock.

Working for a particular company is voluntary; if you don't like the employment conditions -- union, no union, compensation, management -- associated with the company, work somewhere else.


I completely agree with this. However, one issue with labor unions is that some of them have very strong presences cross entire industries. In this regard, some of the issues may read like antitrust constraints.
9.10.2009 9:37pm
Oren:

One way to address that point would be to distinguish for-profit corporations (probably including medical centers and similar NINOs -- Nonprofit In Name Only) from not-for-profit corporations. I have not thought this through, but it might be worth considering.

I was making the distinction between corporations whose entire purpose is political advocacy. Those present absolutely no "forced speech" problems and yet were almost (5 to 4!) squelched by BiCRA.
9.10.2009 9:58pm
Larrya (mail) (www):
I guess we have reached consensus: The NRA is no friend of the First Amendment, except by invadvertence. I can live with that assessment.
The NRA argued that "the Court should over-rule Austin/McConnell to the extent that they ban advocacy by non-profit corporations funded by individuals, or the Court should over-rule both cases as applied to all corporations." Nowhere did the NRA suggest any limitation for the purpose of arguing for the Second Amendment. If the court voids the law it would mean that any non-profit advocating on the Bong Hits for Jesus issue, or any other, would be protected. How is that "selfish?"

It's all one right.
Some people disliked "forced political speech," though. Should a shareholder be entitled to "opt out" (much like union members) from funding corporate political activity if he disagrees with the corporation's ideology?
Owning stock in a corporation gives you a voice in how the corporation is run. Feel free to vote against whatever policies you don't like. Or "opt out" by selling your shares.
9.11.2009 1:00am

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