This case over the Hillary and Obama movies will have far-reaching consequences. The FEC had ruled that it would be a federal felony, punishable by five years in prison, for Citizens United to have Video On Demand show either of those movies just before an election or primary. Those draconian penalties come from a provision in the Bipartisan Campaign Reform Act (BCRA), better known as McCain-Feingold. Citizens United (rightly) argued that this part of BCRA violates the First Amendment.
Representing the Obama administration was Solicitor General Elena Kagan, who might be President Obama’s next Supreme Court nominee if, as expected, Justice Stevens retires from the Court next year. Kagan’s opponent was former Bush Solicitor General Ted Olson, widely regarded as the best Supreme Court lawyer in the country.
Olson dominated the argument in the Citizens United hearing. The liberal justices came after him, with Justices Stevens and Breyer aggressively questioning Olson, who parried with humor while deflecting their arguments.
Kagan didn’t fare as well. She admitted abandoning the Obama administration’s earlier positions, instead arguing that government must be able to ban movies and other election-related communications to prevent organizations from promoting a message with which the shareholders disagree because they can’t monitor the corporations they own, or because of corruption arising from a quid pro quo.
Chief Justice John Roberts seemed incredulous, characterizing Kagan’s position as, “we the government, Big Brother, has to protect shareholders from themselves,” or that, “we the government have to protect you naïve shareholders.” He pointed out that the two Supreme Court precedents the FEC was seeking to preserve in this lawsuit to protect McCain-Feingold never even hinted at such things.
That’s unfortunate for the Obama administration, because the swing vote in this case is Chief Justice Roberts, not the usual Justice Kennedy. (Not that it makes any difference, because Kennedy also signaled that he wasn’t buying Kagan’s argument.)
But it’s fortunate for the American republic. Robust public debate is essential to democracy, and we’ll find out shortly if the Supreme Court is willing to restore Americans’ right to speak out during elections.