In court, government drops claim it can regulate books

One important issue in the high-profile campaign speech case Citizens United v. Federal Election Commission was resolved today during a special session of the U.S. Supreme Court when Solicitor General Elena Kagan retracted the government’s claim that the First Amendment allows it to ban books produced with corporate or union money. It was the second time the case has been argued before the court.

The case asks whether the Bipartisan Campaign Reform Act of 2002 (BCRA), often called the McCain-Feingold Act and intended primarily to regulate traditional 30- and 60-second campaign ads, can also be applied to the distribution of a caustic 90-minute film Citizens United produced about Hillary Clinton’s bid for the White House. The FEC said McCain–Feingold restricted distribution of the film.

During the March 24 argument in the case, discussion turned from electioneering broadcasts to other media such as books, newspapers, and signs. Justice Anthony Kennedy asked Deputy Solicitor General Malcolm Stewart whether an electronic book could be banned in the run-up to an election. Stewart responded that “a corporation could be barred from using its general treasury funds to publish the book and could be required to use Political Action Committee funds to publish the book." Justice Samuel Alito said it was “pretty incredible” to claim that a book advocating a candidate could be banned. When Stewart responded that the ban would apply not to the book, but merely to corporate general treasury funds that would underwrite it, Alito responded that “most publishers are corporations.”

The government’s claims worried many organizations. The Reporters Committee, for example, argued in a friend-of-the-court brief that, given the government’s broad claims, “[t]he Court should take this opportunity to make clear that the press, broadly defined by its intent to gather and disseminate information, must be exempt from campaign finance regulations if the statutes are to survive a First Amendment review.” The Reporters Committee took no position on the film’s merits or the whether the First Amendment permits regulation of traditional campaign ads.

Rather than issuing a decision at the end of last term, the Court ordered rebriefing and a new argument. Looking beyond the Clinton film, it asked whether it should overrule as a whole or in part two seminal campaign finance cases – Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and McConnell v. FEC, 540 U.S. 93 (2003). Both cases allowed the government to regulate how corporations and unions can spend money in the run-up to elections.

Most of today’s reargument was focused on these broader issues. But, at the conclusion of Solicitor General Kagan’s argument, Justice Ruth Bader Ginsburg asked whether the government still claimed the Constitution allowed Congress to regulate newspaper ads and campaign biographies. Kagan responded that “[t]he government’s answer has changed.” After the March 24 argument, she said, the government took “the Court’s own reaction to” its broad claims “very seriously. We went back, we considered the matter carefully, and the government’s view is that although [related campaign finance laws] cover full-length books, that there would be [a] quite good as-applied challenge to any attempt to apply [them] in that context.” She added that the FEC has never tried to regulate books.

But Kagan parried questions as to whether the First Amendment similarly bars regulation of campaign speech distributed in other ways, including movies shown in theaters or distributed on DVDs. And when Chief Justice Roberts pressed Kagan on whether pamphlets could be regulated by Congress, she implied that they could be. Kagan said “a pamphlet would be different” than a book, because it “is pretty classic electioneering.”