Earlier this year, at Supreme Court oral argument in the case of Citizens United v. Federal Election Commission, the government raised eyebrows by arguing that it believed that it can constitutionally ban the publication of books (if, as is always the case, the publisher is a corporation) that contain even one line arguing for the election or defeat of a candidate for federal office. The government based its belief on the Supreme Court’s 1990 decision in Austin v. Michigan Chamber of Commerce, which upheld a blanket ban on corporate political spending in order to prevent “distortion” of campaigns. Faced with the full constitutional ramifications of Austin – for the government’s position flows naturally from Austin – the Supreme Court asked the parties to reargue the case on September 9, to consider whether Austin should be overruled.
Austin was based on the assumption that the government could limit some speech in order to enhance the voices of others, although the case tried not to frame it that way. Rather, the Austin Court argued it was dealing with a “different type of corruption, the corrosive and distorting effects of immense aggregations of wealth… .” To most people, that sounds like an egalitarian argument, not one about “corruption.” Which would be fine – it is perfectly acceptable to favor things on egalitarian grounds – except that the First Amendment to the Constitution appears to forbid the government from making such determinations. As the Supreme Court stated in in the landmark case Buckley v. Valeo, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed ‘to secure “the widest possible dissemination of information from diverse and antagonistic sources,”‘ and ‘”to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”‘”
Thus, Austin has long been the odd man out in campaign finance jurisprudence, the case that doesn’t fit the mold. And apparently the government now agrees, for rather than defend Austin, the government has apparently decided that the best defense is a good offense – in it’s brief, filed last week, it now argues that it not only can ban books published by corporations – it could ban books even if published by individuals.
As Richard Hasen notes, the government’s supplemental brief makes no mention of the “distortion” argument that underlay Austin. Instead, the government argues that it can regulate even independent speech because such speech might influence elections and might make officeholders feel some sense of gratitude to those who make such expenditures. Such a rationale runs directly counter to Buckley and other Supreme Court precedents, including Colorado Republican Federal Campaign Committee v. Federal Election Commission and Federal Election Commission v. National Conservative Political Action Committee. The Buckley Court held that independent expenditures could not be regulated because, by nature being independent, there was less opportunity for an exchange of legislative favors, and because, simply put, allowing regulation of independent spending would carve a swath through the First Amendment too broad for even a Court writing in the immediate aftermath of Watergate to swallow. Austin, clumsy and disingenuous as it is, nonetheless only alters that rule for corporations, and presumably unions. Now the government seeks to alter the rule for all, allowing it to regulate all political speech that supports or opposes a candidate’s election. Under the government’s proposed rule, not even actual gratitude is required before the government can limit speech – it is enough that the government thinks that in some cases legislators might feel gratitude.
If the Court was worried that Austin had no logical stopping place short of banning corporate published and distributed books and movies, we don’t think that the government’s new approach is going to be any comfort. But hey, when you’re way behind and the clock is finally running out, why not throw the Hail Mary?
Cross Posted at Center for Competitive Politics, www.campaignfreedom.org.