Posted by Jonathan Adler:
Why Is the Court Reconsidering *Austin*?
http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252359540
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 [1]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 [2]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 remarkable 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?
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.
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 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 -
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 -
Here is another answer to the 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.
References
1.
http://www.scotusblog.com/wp/argument-preview-corporations-in-politics/#more-10571
2. http://its.law.nyu.edu/facultyprofiles/profile.cfm?personID=20200
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