Citizens United v. Federal Election Commission - March 24 2009 Oral Argument before US Supreme Court

We'll hear argument today in case 08205, Citizens United v. The Federal Election Commission. Mister Olson.

Mister Chief Justice, and may it please the Court. Participation in the political process is the First Amendment's most fundamental guarantee, yet that freedom is being smothered by one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state. In the case that you consider today, it is a felony for a small nonprofit corporation to offer interested viewers a ninety minute political documentary about a candidate for the nation's highest office that General Electric, National Public Radio, or George Soros may freely broadcast. Its film may be shown in theaters, sold on DVDs, transmitted for downloading on the Internet, and its message may be distributed in the form of a book. But its producers face five years in prison if they offer it in the home through the vehicle of video on demand.

Because the limitation on speech, political speech, is at the core of the First Amendment, the government has a heavy burden to establish each application of a restriction on that form of speech is a narrowly tailored ex response to a compelling governmental interest. The government cannot prove and has not attempted to prove that a ninety minute documentary made available to people who choose affirmatively to receive it, opt in by an ideologically oriented, small corporation poses any threat of quid pro quo corruption or its appearance. Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee.

Mister Olson, if the film were distributed by General Motors, would your argument be the same?

Well, it wouldn't definitely would not be the same because there are several aspects, of the argument that we present. However, in one respect, it would. A ninety minute documentary was not the sort of thing that the the BICRA, the the Congress was intended to prohibit. In fact, as the as the, as the as the Reporters Committee for First for Freedom of Speech points out, the documentary is objectively indistinguishable from other news media commentary. But The

the point then of similarity is you would, whether it, was offered by General Motors or offered by by this petitioner, in effect, call for some qualification of the the the general rule, allowing limitations on corporate, political activity of of of the speech variety?

Yes. We would. Although it is a very important fact.

How would how would we draw the line? Well, one

of the reasons that one of the bases upon which you would draw the line is to look at the documentary the voluminous documentary record that the government cites and this court cited in the McConnell case as a justification for the restrictions themselves.

Well, would every in effect, every limitation on corporate speech or on corporate expenditure and the nature of speech be subject then to, in effect, this, all factor balancing test?

Well, I think what I'm trying to say is that what the what the congress was concerned with, and judge Kolar Catelli in the district court opinion that you considered in McConnell, discusses this on page 646 of her opinion, that this sort of communication was not something that congress intended to prohibit. You would look at if congress intended to prohibit ninety minutes

So so your your argument then is there's something distinct about the speech, which could be considered regardless of the corporate form.

Well, that's part of our argument. Yes.

If if that is the case, what is what is the answer to this? That that still is going to involve a a a a fairly complicated set of analyses probably preserve First Amendment values, when you could have done this with a pack?

Well, as this court said in the Wisconsin Right to Life case just a couple of years ago, that the pack vehicle is burdensome and, difficult.

That's right. You you got reporting. You got limitations on on, on, you know, corporate contributions and so on. But in this case, for example, most of your contributions, as I understand from the record, were individual. They weren't corporate.

There there was one, perhaps. There was some corporate contribution.

Yes. On page 252 of the appendix in 251, it points out, you're absolutely correct, that 1% of the contributions

Okay.

Were from corporate Was

that was that established? I thought that the record was hardly made of the contributors to this film. I think there was something like $200,000 accounted for, and the film cost to to get the channel o eight, whatever it was, to put it on, cost over a million dollars.

The government sent an interrogatory, justice Ginsburg, asking for the major contributions with respect to this project and the ones that that they sought the government sought what they thought was important. The answer to that interrogatory is at page two fifty one a and two fifty two a, that the government was seeking information with respect to contributions, at a thousand dollars or more. A hundred and 98,000 came from individuals. And, by the way, the three largest contributors, that are listed on page 252 of the joint appendix are given credit in the film itself. So there's no no effort to to conceal those individuals.

Okay. So that it's possible, it's possible that corporations throughout America were giving small amounts of money to this. That record doesn't establish one way or the other. What it does establish is what the government felt was necessary for its case, that the major contributors were individuals and not corporations.

You you answered justice Souter. I took your answer to be the following, that if the corporation had paid for their paid for, a program and the program was ninety minutes, which said vote for Smith, vote for Smith over and over, that's the program, that you can see that the government could ban this under the Act. Well, I it's it is difficult for I don't think they would. We agree. It's an imaginary hypothetical.

But in fact, if they did have ninety minutes of vote for Smith or vote against Jones, you concede for purposes of this argument that the government can ban. Is that right or not?

If not by this organization, we think that if it's a small nonprofit organization, which is very much like the Massachusetts Okay.

Okay. So one of your arguments is this is a special corporation, you can't. Now suppose it's General Motors, can they? Well, General Motors may be smaller than the client that we represent.

I understand.

I ask girls to the

I'd like to get I want to get an answer to the question. Yes. I think Yes. Okay. Now, and my question that I'm driving towards is since General Motors can, in your view, be forbidden to have our film of ninety minutes vote for Smith, vote for Smith, vote for Smith, or vote against Jones, vote against Jones, vote against Jones.

How is this film, which I saw, it is not a musical comedy, what what how does this film vary from my example? And why does the variance make a difference?

The difference is it's exactly what the court was describing in Wisconsin Right to Life. It is a 90 it is it it informs and educates, which is what the Court said or the chief justice's opinion, the controlling opinion said was the mark of an issue communication. And as this Court said, there

was a And, sir, also,

I thought you conceded in the at least as I read your reply briefs that you were no longer saying this is about an issue unrelated to any election. I thought you said that this was a ninety minute movie concerning the qualifications, character, and fitness of a candidate for the nation's highest office, and that's just what Wisconsin Right to Life was not. It was not about the character, qualifications, and fitness of either of the senators.

What the what the court said in Wisconsin Right to Life was that the distinction between an issue at communi issue advocacy and campaign advocacy dissolves upon practical application. This is exactly what the court was talking about there.

But didn't the court there say this is not about character qualifications and fitness?

Yes, it did, Justice Ginsburg. But what my point is that there isn't just two boxes in the world of communications about public issues, one box for so called issues and one box for campaign advocacy. That's what I think the court meant when it said, not just in Wisconsin Right to Life, but in earlier cases, that the distinction dissolves upon application.

But no matter how many boxes we have, doesn't this one fall into campaign advocacy? I mean, I've got the government's brief open open at pages eighteen and nineteen with the quotations. She'll lie about anything. She's deceitful. She's ruthless, cunning, dishonest, do anything for power, will speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief.

I mean, this sounds to me

like campaign advocacy.

It what

what the court

was talking about and has

Koro Catelli talked about is broadcast advertising, these ten minute ten second, thirty second, sixty second bursts of communication that are, that are the influence in elections.

I wanna get the answer to what I was asking.

But it it it it seems to me the answer to justice Breyer's question, this is a don't vote for Jones.

This is a long discussion of the record, qualifications, history, and conduct of someone who's in the political arena, a person who already holds public office, who now holds a different public office, who, yes, at that point, justice Souter, was running for office. But the fact is that what could the individual making a as I said, the Reporters Committee for the Right to Life said this is indistinguishable from something that is on the public media every day, a long discussion. It might be what what you're suggesting is that it unless it's somehow evenhanded, unless it somehow says, which would be viewpoint discrimination or prevention of view viewpoints, which is the safe harbor that the government has written into its so called safe harbor. If you don't have a point of view, you can go ahead and

That is that isn't the suggestion. The suggestion I was going to trying to get to is we know you can't just say vote against Smith, vote against Smith, vote against Smith. Now, I wanted to know the difference between that and a film that picks out bad things that people did. No good ones, just bad ones the candidate did. And then we have another film that picks out just good things candidates do.

And so candidates run films that show the good things they do, and then someone else shows the bad things they do. Now why is that not the same as vote against Smith, though I grant you it's more intelligent, it's more informative, it's even better electioneering? So we're after electioneering. Why doesn't that fall within the forbidden category?

I the government has the burden to prove and there's a compelling governmental interest narrowly tailored, Justice Breyer, because all kinds of things of the type that you're talking about are permissible if your name is General Motors. I mean, if your name is General Electric rather than General Motors, if your name is Disney, if your name is George Soros, if your name is National Public Radio, what you're suggesting is that a long discussion of facts, record, history, interviews, documentation, and that sort of thing, if it's all negative, it can be prohibited by and and it's a felony. You can go to jail for five years for sharing that information with the American public. Or if it's all favorable, you can go to jail. But if you did half and half, you couldn't.

No. I I guess it's the same as if you were to say, you know, I think Smith is a great guy. That's all. I'm sharing information. And what I don't see is if you agree that we could ban the commercial that says, I see Smith is a great guy.

Why is it any different to supplement that with the five best things that Smith ever did?

Because because of the First Amendment. Congress shall make no law for bridging the freedom of speech. When when the government had when this court has permitted that to happen, it has only done it in the most narrow circumstances for a compelling governmental interest.

But I I guess what what Justice Breyer is asking is, I have the same question. If we concede, and at the end of the day you might not concede this, but if we take this as a beginning, that a short thirty second, one minute campaign ad can be regulated. You want me to write an opinion and say, well, if it's ninety minutes, then that's different. I I it seems to me that you can make the argument ninety the ninety minutes is much more powerful, in support or in candidate. That's I that's that's the thrust of the question.

I understand that, Justice Kennedy, and it is difficult. But let me say that the record that you were considering of McConnell, and I specifically invite, as I did before, page the court's attention to six four six of this of the, district court's opinion, which specifically said the government and Congress was concerned about these short, punchy ads that you have no choice about seeing and not concerned about thorough recitation of facts or things that you would have to make an affirmative decision to opt into. And the the reason why it's difficult is that we are talking about an infinite variety of ability of people to speak about things that matter more to them than anything else. Who will be Counselor,

I think you've kind of shifted your focus here from the difference between a ten second ad and a ninety minute, presentation and how that presentation is received, whether it's over the normal airwaves or on this video on demand. What what is the distinction between the ten second commercial and, say, the ninety minute infomercial?

The the thing that I think it's it's it's pointed out specifically in your opinion, controlling opinion for Wisconsin right to life. That which informs and educates and may seek to persuade is something that is is on the line of being permissible. The government hasn't established never did try to establish. I did shift, but I didn't shift, but but all of these are factors. It's who's doing this speaking.

You can educate in thirty seconds. I mean, in in a thirty second ad, you present just one of these criticisms of the candidate instead of lumping all of them together for ninety minutes. The point I think

Does that educate? The point I think, Justice Scalia, is, yes, you can educate in ten seconds. You can educate the court was trying to do what Congress was trying to do is get at the things that were most potentially rough

Are you making a a a statutory argument now or a constitutional argument? What congress was trying to do has nothing to do, it seems to me, with

with with the constitutional point you're arguing. The government makes the point that it established a voluminous record of evidence. Both congress had before it and this court had before it a voluminous volume of evidence because it had the burden of proving that something was really bad with these these types of advertisements. And what the what the court did is say, well, okay, in in McConnell. Yes, there is a substantial burden that the government met that these types of communications, not the Internet, not books, not other types of things, are really bad enough that the government could pick those out, and it is narrowly tailored its solution to that problem by prohibiting those things.

And the government talks about this today in its brief, the things that Congress felt were the most acute problem.

So you are making a statutory argument. Now you're saying that this this isn't covered by it.

Yes. I am making a statutory argument in the sense that you will construe this statute in the ways that doesn't violate the constitution. The constitution, as as the court said in Wisconsin Right for Life, gives ties to the speaker, airs on the side of permitting the speech, not prohibiting the speech. And so all of those things may be statutory arguments, justice Scalia, but they are also constitutional arguments. And in response to every one of these questions, the government has the burden of proving this sort of speech, which the reporters say is indistinguishable than the kind of information that news media puts out all the time

So this argument doesn't depend upon whether this is properly characterized as express the functional equivalent of express advocacy. Your contention is that even if it is, that because it wasn't in the factual record in McConnell or before Congress, it is a type of functional it is a type of express advocacy that's not covered by the act?

I don't think just Chief Justice Roberts said it is remotely the functional equivalent of express advocacy because what the court and Congress was thinking about with respect to express advocacy was short, punchy, and

Well, that's that's what I'm trying to figure out the distinction in your argument. I mean, if we think that this is the functional equivalent of express advocacy, are are you contending that it is nonetheless not covered, in light of the record before the, court in McConnell and before Congress?

I I think I would agree with that, but I would also say that the the idea, functional equivalent express advocacy is the very magic word problem that this court has struggled with in McConnell and, in in in each of the cases. I would I said at the beginning that this is an incomprehensible prohibition, and I and and my I I think that's demonstrated by the fact that since 02/2003, this court has issued something close to 500 pages of opinions interpreting and attempting to figure out what this statute means, how it can be interpreted. In fact Well, that's because it's mandatory appellate jurisdiction.

I mean, it's we don't have a choice.

There would be fewer there would be fewer there would be fewer opinions. I guess my point is

that those cases presented more difficult issues than this one.

I think this presents a much easier issue, justice Stevens, because this is the type of if there is anything that the First Amendment is intended to protect in the context of elections that are occurring, which, by the way, for four years running, but but the last election, presidential election occurred throughout the entire 02/2008. If the American people need to have that kind of information, and the statute is both overly broad because if it was a hotel ad, if it was a hotel saying senator Clinton stayed here or senator McCain stayed here, it would be prohibited because it was a hotel seine. So even though it really had nothing to do with the election, if it is a if but if but it's if it's a if it's a corporation that put together an analysis of the earmarked top positions of each of the senatorial candidates. So all most of all of the candidates were running from the senate. They all had this these issues where they may have voted or not against earmarks.

But mister Olson, this is I think you were right in conceding at the beginning. This is not like the speech involved in Wisconsin Right to Life. This is targeted to a specific candidate for a specific office to be shown on a channel that says election o eight in that tells the the viewer over and over again what just for example, it concludes with, these are things worth remembering before you go in potentially to vote for Hillary Clinton. Now if that isn't an appeal to voters, I can't imagine what is.

Yes, justice Ginsburg. I understand your point. There is much in there that if you sought, you would form an opinion with respect to how you might want to vote. You might it might form a different you might form all kinds of different opinions, but it was it was an analysis of the background record and history and qualifications of someone running for president. Of course, I can see that.

But what is the what is the maker of a movie to take out in order to prevent that from happening? I understand from some of the questions that it was more evenhanded. If it said, well, this candidate did this, but this candidate did this, or this candidate was born in the Panama Canal Zone, and this candidate was born in Hawaii, and that affects whether or not they're natural born citizens or not. And it was more evenhanded with that then not be a felon.

Well, as you as you said yourself, as you pointed out, there there is a point at which there is no nonporous border between issue discussion and candidate discussion. But I think the the the the problem that that that Justice Ginsburg is having, that I'm having, and and others is that it does not seem to me that with the quotations we're dealing with here, as Justice Breyer said, it's not a musical comedy. I think we we we we have no choice really but to say, this is not issue advocacy. This is express advocacy saying don't vote for this person. And if that is a fair characterization, the difference between 90 and one minute, either for statutory purposes or constitutional purposes, is a distinction that I just cannot follow.

Well, it is a distinction that Congress was concerned about, and it's a distinction that's all over

the country.

But you say that. Why what what is your basis for saying that Congress is is less concerned with ninety minutes of don't vote for Clinton than it was with sixty seconds

of vote? Because the record in Congress and the record in this court is that those types of advertisements were more effective because they came into

They are the characteristic advertisement. There is no question about that. That is the paradigm case. I agree with you. But I don't see how you you then leap from saying from saying that is the paradigm case to saying that this never covers anything but the paradigm case when the only distinction is time.

The the I think the what the what congress was concerned about is the most severe and the most acute problem as justice Skolarcatelli said, which everyone acknowledges was the problem congress sought to address with Bicarraf. It's not just that, however. The point that you just made about a non porous border, it is the government's responsibility to the extent that you can't figure out how even handed you must be or what you must take out of your communication in order not to go to jail for airing it, it it is the there's some functional equivalent if everything is the functional equivalent that mentions a candidate during an election, which is what the government says, it's the functional equivalent of a prior restraint.

Mister Olson, I I think we've been led astray by by the, Constance reference to what Congress intended. As I understood your point, it was not it was not that, one is covered by the statute and the and the other isn't, but it is that one is covered by the constitution and the other isn't. And it may well be that, that the kind of speech that is reflected in a serious ninety minute documentary is entitled to, a greater constitutional protection. And it may well be that the kind of speech that is not only offered, but invited by the listener is entitled to high is entitled to heightened First Amendment scrutiny, which is which is what this is since you had to pay for view.

I agree with that completely, justice Scalia. Mister chief justice, if I may reserve the remainder of my time.

Thank you, counsel. Mister Stewart.

Mister chief justice, and may it please the court, the lead opinion in Wisconsin Right to Life didn't just use the term functional equivalent of express advocacy. It explained what that term meant. And on page twenty six sixty seven of, volume one twenty seven of the Supreme Court reporter, the plurality or the lead opinion stated, in light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. So the functional equivalence test doesn't depend on the length of the advertisement or the medium in which which the advertisement

Well, the length

of the advertisements wasn't remotely at issue in either Washington Right to Life or McConnell or before Congress when they passed this law.

Well, certainly, Congress considered a variety of evidence bearing on campaign practices that had been undertaken in the past. They were primarily most of the examples on which they focused were thirty sec thirty second and sixty second advertisements. It's certainly been a recurring phenomenon in the past that candidates would air, for instance, thirty minute infomercials.

Any discussion in either McConnell, any citation, either in McConnell or the congressional record to those types of documentaries?

I'm not sure about the the citation in I don't I'm not aware of any citation in McConnell or the congressional record, but it was certainly a known phenomenon. And I think the the real key Well,

I mean, how do we know it was a known phenomenon in terms of the evolution of the statute and the decision of this court upholding it? There's no reference to it.

I think the real key to ascertaining Congress' intent is to look to the definition of electioneering communication that congress enacted into the statute, and that definition requires that the communication be a broadcast cable or satellite communication in order to qualify as electioneering communication and that it be aired within a certain proximity to a Federal election, and that in the case of an election

So so if Walmart airs an advertisement that says we have candidate action figures for sale, come buy them, that counts as an electioneering communication?

If it's aired in the right place at the right time, that would be covered. Now under this court's decision in Wisconsin Right to Life, it would be unconstitutional as applied to those advertisements because those certainly would be susceptible of a reasonable construction of

the the constitution required congress to draw the line where it did limiting this to broadcast cable and so forth. What's your answer to mister Olson's point that, there isn't any constitutional difference between the distribution of this movie on video demand and, providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book. Would the constitution permit the restriction of all of those as well?

I think the constant constitution would have permitted congress to apply the electioneering communication restrictions to the extent that they're otherwise constitutional under Wisconsin's right to life. Those could have been applied to additional media as well. And it's worth remembering that the preexisting Federal Election Campaign Act restrictions on corporate election which have been limited by this court's decisions to express advocacy. That's pretty

incredible. You think that if if, a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

I'm not saying it could be banned. I'm saying that congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its

Well, most publishers are corporations. And a corporate a publisher that is a corporation could be prohibited from selling a book.

Well, of course, the the statute contains its own media exemption for media.

But I'm not asking what the statute says. The government's position is that the First Amendment allows, the banning of a book if it's published by a corporation.

Be because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right. That that question is obviously not presented here. That the other two

things Suppose it were

an advocacy organization that had a book. Your position is that under the constitution, the advertising for this book or the sale for the book itself

could be prohibited within the sixty, ninety day period sixty, thirty day period. If the book contained the functional equivalent of express advocacy, that is, if it was subject to no reasonable interpretation

by And I suppose it could even is it the Kindle where you can read read a book? I I take it that's from a satellite, so the existing statute would probably pray about that under your view.

Well, the statute applies to cable, satellite, and broadcast communications. And the the court in McConnell has addressed the point.

Just just to make it clear, it's the government's position that under this statute, if the the the Kindle device where you can read a book, which is campaign advocacy, within the sixty, thirty day period, if it comes from a satellite, it's under it can be prohibited under the Constitution and perhaps under this statute.

It can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use to raise funds to publish the book, using its PAC.

But

If it has one name, one use of the candidate's name, it would be covered. Correct? That's correct. If it's a 500 page book and at the end it says, and so vote for x, the government could ban that.

Well, if it says vote for x, it would be express advocacy, and it would be covered by the preexisting Federal Election Campaign Act provision.

No. I'm talking about under the Constitution, what we've been discussing, if it's a book.

If it's a book and it is produced, again, to leave to leave to one side the question of

Right. Right. Forget the

Possible media ex exemption. If you had Citizens United or General Motors using general treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this

I don't think my hypothetical doesn't say at the outset. It runs, here is a whatever it is, this is a discussion of the, American political system. And at the end, it says vote for x.

Yes. Our position would be that the corporation could be required to use PAC funds rather than general treasury funds.

And if they didn't, you could ban it.

If they didn't, we could prohibit the publication of the book using the corporate treasury fund.

I wonder if that's I mean, I take it the answer to the question, can the government ban labor unions from saying we love this person, the corporations we love them, the environmentalists saying we love them, is of course the government can't ban that. The only question is who's paying for it. And they can make a determination of how much money the payors can pay, but you can't ban it.

That's correct. And they can

If that's correct, then I take it the interesting question here would be I don't know if it rises in this case suppose there were a kind of campaign con literature or or advocacy that either a corporation had to pay for it, it couldn't pay for it through the PAC because for some reason I don't know the PAC, and there's no other way of getting it to the public. That would raise a constitutional question, wouldn't it? It would raise a constitutional Is that present in this case?

It's not present in the case. I don't think it would raise a difficult constitutional question because, presumably, if the reason that the corporation couldn't do it through the PAC, the the only reason I could think of would be that it couldn't find PAC eligible donors who were willing to contribute for this speech. And and if that's the case, the corporation would could still be forbidden to use its general trademark.

Know about that when I would guess I would be worried if, in fact, there was some material that couldn't get through to the public. I would be very worried, but I don't think I have to worry about that in this case. Do I?

That's correct. Both because the question isn't presented here and because Congress But if we accept your constitutional argument, we're establishing a precedent that you yourself say would extend to banning the book, assuming a particular person pays for it. I think the Court has already held in both in Austin and in McConnell that Congress can or that Congress or State legislatures can prohibit the use of corporate treasury funds for express advocacy.

To write a book.

To pay for somebody to write a book.

Well, in in MCFL, for instance, the communication was not a book, but it was a newsletter. It was written material. And the court held that this was express advocacy for which the use of corporate treasury funds would ordinarily be banned. It held that because of the distinctive characteristics of the particular corporation at issue in that case, MCFL was entitled to a constitutional exemption. But I think the clear thrust of MCFL is that the publication and dissemination of a a newsletter containing express advocacy could ordinarily be banned with respect to the use of corporate treasury on the part.

The news. I suppose a sign held up in Lafayette Park saying vote for so and so. In fact, under your theory of the constitution, the prohibition of that would be constitutional.

Again, I I do want to make clear that if by prohibition you mean ban on the use of corporate treasury funds, then, yes, I think it's absolutely clear under Austin, under McConnell, that the use of corporate treasury funds could be banned if General Motors, for for instance,

wanted to be And and and and you you, you get around the fact that this would extend to any publishing corporation by saying that there is a media exemption because the constitution guarantees not only freedom of speech but also of the press?

Well, there has always been

Does the press mean the media in that constitutional provision? You think in 1791, there were there were people running around with fedoras that had press little press tickets in it, press. Is that what press means in the constitution? Doesn't it cover the Xerox machine? Doesn't it cover the the the the right of any individual to, to to write, to publish?

Well, I think the difficult constitutional question of whether the general restrictions on use of corporate treasury funds for electioneering can constitutionally be applied to media corporations has never had to be addressed because the statutes that this court has reviewed have Well,

I don't see any reason why it wouldn't. I'm saying there's there's no basis in the text of the constitution for exempting press in the sense of,

what, the fifths. In in any event, the only question this court would potentially need to decide in this case is whether the exemption for media companies creates a disuniformity that itself renders the statute unconstitutional. And the court has already addressed that question in McConnell. The claim was made that because media corporations were exempt, there was inequality of treatment as between those and other corporations, and congress said, no. Congress I mean, this this court said, no.

Congress can protect the interests of the media and the public in receiving information by drawing that line.

I wanna know how far your argument would go. What if, a labor union paid an author to write a book advocating the election of a or the defeat of of b? And after the manuscript was prepared, they then went to a commercial publisher, and, they got a random house. Random house says, yeah, we we we will publish that. Can the can the distribution of that, be in effect subject to the electioneering ban because of the initial, labor union investment?

Well, exactly what the remedy would be, whether there would be a basis for suppressing the distribution of the book, I'm not sure. I I think it's clear under

Does it does it come with an electioneering because of the initial subvention to the author?

It wouldn't be an electioneering communication under Bicra because Bicra wouldn't apply to the print media. Now, it would potentially be covered by the No. But I'm

we're we're talking about how far the constitutional ban could go, and we're talking about books.

Well, we would certainly take the position that if the labor union used its treasury funds to pay an author to produce a book that would constitute express advocacy. So that And the book was

and the and the book was then taken over as a commercial venture by Random House.

The the labor union's conduct would be prohibited. The question of whether the book that had already

been Prohibition only comes when we get to the electioneering, stage. That's correct. Okay.

The the question was So for the

for the labor unions simply, to to hire is is is there is there an is there an outright violation when the labor I guess this is the statutory question. Is there an outright violation when the labor union comes up with the original subvention?

I guess I would have to study the the Federal Election Campaign Act provisions more closely to see whether they

Let's assume for the sake of argument that there would not be. The subvention is made. The manuscript is prepared. Random House then publishes it, and there is a distribution, within the, what is it, the sixty day period. Is the is the original subvention, a, enough to bring it within the the prohibition on the electioneering communication, and b, is that constitutional?

Well, again, it wouldn't qualify as an electioneering communication under BICRA because that statutory definition only applies You're

you're right. I stand corrected. If the statute covered that as well, if the statute covered the book as well.

I think the use of labor union funds as part of the overall enterprise of writing and then publishing the book would be covered.

That would be enough bring it in. And And and I don't that constitutional?

And I think it would be constitutional to forbid the labor union to do that.

Whether it would Again, just about even if there's one clause in one sentence in the 600 page book that says, in light of the history of the labor movement, you should be careful about candidates like John Doe who aren't committed to it?

Well, what whether in the context of a 600 page book, that would be sufficient to to make the book either an electioneering communication or a But

it does by its terms, doesn't it? Published within sixty days, it mentions a candidate for office. What other qualification is there?

Well, I think the Court has already crossed that bridge in Wisconsin right to life by saying the statute could constitutionally be applied only if it were the functional equivalent of express advocacy. And so that would be the and we accept that constitutional holding. That would be the relevant constitutional question. I wanted to return for a second, justice Alito, to a question you asked about the the purported interchangeability of the Internet and television. And it's certainly true that that a growing number of people are coming to experience those media as essentially interchangeable.

But there are still a lot of people either who don't have computers at all or who use their televisions and their computers for fundamentally different purposes. And I think it's evident that Citizens United perceived the two media to be distinct because it was willing to pay $1,200,000 to a cable service in order to have the film made available on by video on demand when Citizens United could have posted the film on its own website, posted the film on YouTube, and could have avoided both the need to make that payment and the potential applicability of the electioneering communication. If they have done either of the If they

have done either of the things you just mentioned, putting it on its own website or, putting it on YouTube, your position would be that the constitution would permit the prohibition of that during the, the period prior to the primary of the election?

Our our position is not that the constitution would permit it. Our position is that BCRA wouldn't prohibit it because those are not covered media.

Now Would the constitution if if BCRA if congress in the next act covered that in light of advances in the Internet, would the constitution permit that?

Yes. I mean, with the the court in McConnell upheld the electioneering communications on their face, and this court in a majority of this court in Wisconsin Right to Life said those provisions are constitutional as applied I'm

really disoriented here, mister Stewart. We are dealing with a constitutional provision, are we not? The one that I remember, which says congress shall make no law abridging the freedom of the press. That's what we're interpreting here?

That's correct. Okay. But, again, this the court obviously has grappled in the past with the question of how to apply that provision to use of corporate treasury funds either for express electoral advocacy or its functional equivalent.

But in

in this case, mister Stewart, I I take it, correct me if I'm wrong, that you think there the distinction the petitioner draws between, the the ninety minute film and the and the short thirty second or or one minute ad is a baseless distinction?

It is of no constitutional significance. Congress certainly could have have drafted the electioneering communication definition.

So if if if we if we think that, the application of this, to a ninety minute film is unconstitutional, then the whole statute should fall under your view. Well, I think Because there's no distinction between the two.

Well, I think the court has twice upheld the statute as applied to communications that are the functional equivalent of expressing ad. But I'm I'm saying that

if we just if if we think that this is that this film is protected, and you say there's no difference between the film and ad, then the whole statute must be declared.

It would depend on the ground under which you reached the conclusion that this film was protected. If you disagreed with our submission and said there is a constitutional difference between ninety minute films and sixty second advertisements, then obviously you could draw that constitutional line. If you concluded that they're all the same but they're all protected, then obviously we would lose both cases. But, again, you would have to You

want us to say they're both the same? You want you argued that they're both the same.

That that's correct. Now it may be the case it may be rarer to find a ninety minute film that is so unrelenting in its praise or criticism of a particular candidate that it will be subject to no reasonable interpretation other than to vote for or against that person. But when you have that, as I think we do here, there there's no constitutional distinction between the ninety minute film and the sixty second advertisement. And we would stress with respect to the film that what makes this, in our view, an easy case is not simply that the film repeatedly criticizes Hillary Clinton's character and integrity. The clincher is that the film repeatedly links senator Clinton's purported character flaws But but that her qualifications for president.

Just from the standpoint of art and literature, that's very odd. Suppose you have a film which is very quite moving with scenery and music and magnificent acting and a subtle message, that may be far more effective in advocating. And everyone knows that. And everyone knows that.

That that's essentially the argument that this that a majority of this court rejected in Wisconsin right to life. That is that that was part of the basis on which congress enacted BICRA, part of the reason that it wanted to establish a purely, objective test based on naming an identified candidate and erring in proximity to the election. Congress recognized that in many situations, the most effective advocacy is the subtler advocacy. And the the lead opinion in Wisconsin Right to Life said, I I think recognized that it will foreseeably be the case that corporations will craft advertisements that are, in fact, intended to influence federal elections, but that are sufficiently subtle and opaque that they won't constitute the functional equivalent of express advocacy. And and the lead opinion simply said, that's the price that we have to pay in order to ensure that an unduly broad range of corporate speech is not restricted, and we accept that holding.

But in this case, what we have, people may feel is not subtle. People may feel that because it's not subtle, it's less likely to be effective. But the court's decisions have never drawn a constitutional line between advocacy that is likely to be effective and advocacy that is not. Clearly, if this were express advocacy, I think clearly, if the the narrator had said in the first thirty seconds of the film, a Hillary Clinton presidency would pose a danger to the country. It's important for all citizens to vote against Hillary Clinton.

What follows are extended analyses of episodes in her past that reflect Hillary Clinton's unsuitability for that office. And if then in the last eighty nine minutes of the film, the filmmaker had made no overt reference to the upcoming election, but had simply given a negative portrayal of Hillary Clinton, the person, That would be express advocacy that would be prescribable even without regard to Vicra.

So the Even though that type of case was never presented to the court in McConnell and was never presented to congress when it considered, Vicra?

Well, it's not clear whether it was presented to Congress or not. It's certainly true that it was not a focus of congressional, attention. But we know from the definition of electioneering communication what attributes Congress wanted to make relevant to the coverage determination. That is, it chose to restrict this to broadcast cable and satellite communications and to leave out the print media. It chose to restrict it to advertisements or other communications that were aired within a specific proximity to the election.

If it had been unconcerned with communications over a certain length, it could certainly have made that part of the statutory definition, but it chose not to do that.

This film has been compared to Fahrenheit nine eleven, which had the pervasive message that president Bush was unsuited to be president. And so if that film had been financed out of corporate general corporation's general treasury fund and put on an election channel, that would similarly be, banned by this statute.

I'm afraid I'm not familiar enough with that film to know whether it would have constituted the to to make an informed judgment about whether that would have constituted the functional equivalent of express advocacy under Wisconsin Right to Life. And, of course, the electioneering communication definition would apply only if the film had been broadcast within a specified proximity to a primary or general election in in 02/2004. But I think

Mister Stewart, you think that there's a possibility that the First Amendment interest is greater when what the government is trying to stifle is not just a speaker who wants to say something, but also a hearer who wants to hear what the speaker has to say. I mean, what's somewhat different about this case is that unlike over the air television, you have a situation where you only get this. This message is only aired if somebody elects to hear it. So you really have two interested people, the speaker and and the listener who wants to who wants to get this. Isn't that a somewhat heightened First Amendment interest than just over the air broadcasting of advertising, which probably most listeners don't wanna hear?

Well, I think I think the first of all, I think if we had tried to make the argument in McConnell that the BCRA provisions or or in any other case that the BCRA provisions are constitutional as applied to thirty or sixty second advertisements because they are defensible means of protecting listeners who, by hypothesis, don't want to hear the message in the form of a captive audience, I don't think we would have gotten very far. I think it's certainly true that people have a wide variation of attitudes towards campaign advertisements. Some of them find them irritating, and, of course, they can hit the mute button or or leave the room, or in the case of people who use TiVo or VCRs, can simply fast forward through them. But the the whole premise of the congressional regulation and the whole premise of the corporation's willingness to spend these massive amounts of money was that enough people will be interested in the advertisements that they will ultimately have an electoral effect. And and so if you compare the the film to the advertisement, the advertisements, in one sense, you could say are a less effective mechanism because a lot of the people who reach them are unwilling listeners or uninterested.

But on the other hand, they're more effective because they reach more people. The the flip side is that with the film Mhmm. They you reach a smaller audience. It's certainly a more limited group of people who will sign up to receive the movie, but they're more interested in the message. I I don't think you can operate on the the hypothesis that there is

no You're talking about effectiveness. That wasn't my point. My point was the the, seriousness of the First Amendment interest that's being, impinged, where where you have both somebody who wants to speak and someone who affirmatively wants to hear what he has to say, and the government says, no, the two of you can't do this.

Well, I think Don't you think that's somewhat worse than than the government just saying to somebody who wants to speak, no, you can't speak? I think it would be impossible to divide media up in that way based on the relative likelihood that the recipient of the message will want to hear it. With respect to the the newsletters in MCFL, for instance, on the one in in many instances, they were made available in public places. They were also mailed to a variety of people. You could say You're

saying will will want. I mean, you have a situation here where you don't get it unless you take the initiative to subscribe. I'm I'm not I'm not trying to figure out person by person who wants to hear it and who doesn't. Here, you have a medium in which somebody listens only if that person wants to listen. So the, the person speaking wants to speak and the person hearing wants to hear.

It seems to me that's a stronger a stronger First Amendment interest.

Well, the potential viewers in this case had other alternatives if they wanted to see the film.

The film

was available Was this issue aired before the three judge court? The distinction between, say, putting something on a network TV and putting something on a viewer on demand that the listener has to opt into?

No. Indeed, the the appellant in its complaint simply alleged affirmatively that his communication, if aired on DVD, would I mean, if aired on VOD, would fall within the statutory definition of electioneering communication.

And Counsel, before you run out here, can I we haven't talked about the disclosure requirements yet? You understand the test to be that disclosure is not required if the names of those disclose if those people would be reasonably subject to reprisals?

That that's correct. This Court has recognized a constitutional exemption for to disclosure requirements in cases where disclosure would have a reasonable likelihood of leading to reprisals.

How how do we apply that test? Is it inconceivable to you here that people contributing to, such a clearly anti, Clinton advertisement

It it seems unlikely that reprisals would occur because Citizens United this is obviously a new film, but it is of a piece with communications that Citizens United has engaged in. And

And that doesn't work because maybe they're going to change the nature of the, documentaries that they fund, or somebody who gave a contribution five years ago may decide, boy, I don't like what they're doing. I'm not going to give any more. It I guess the point I was pointing I think that they've disclosed in the past by compulsion of law doesn't seem to answer the question whether they're going to be subject to reprisals. Well, the point was

that they have disclosed in the past and have provided no evidence of reprisals. But I think the Court's decisions are clear that the burden is on the organization to show a reasonable likelihood, at least to to set the ball in motion. And the three judge district court here said essentially what this court said in McConnell with regard to a variety of plaintiffs who included Citizens United. That is, the court said in McConnell and the three judge district court here that the plaintiffs had made vague allegations of the general possibility of reprisals, but had offered no concrete evidence that their own But

that seems to me you're saying they've got to wait till the the horse is out of the barn. You can only prove that you're reasonably subject to reprisals once you've been a victim of reprisals.

Well, I think the alternatives would be to say that disclosure requirements are categorically unconstitutional, which would be an extreme departure from this court's prior precedence.

Or saying that's saying that the test in McConnell is unworkable, if you say the alternative is to say they're categorically.

No. I mean, I I think the if the the I think we we think the test in McConnell is workable. That is, leave it up to the organization to establish particularized proof of a reasonable likelihood of reprisal. If you were going to reject

If Boy Scouts run an ad and they have to they're subject to disclosure, are reprisals?

I mean, it would depend to some extent on the characteristics of the ad, probably not. But I think if the the two alternatives to the the approach that the Court has taken previously would be, first, to say these requirements are unconstitutional across the board, or the court could say, as applied to organizations that engage in especially intemperate or extreme speech of the sort that might seem more likely to subject its proponents to reprisal. The disclosure requirements are categorically unconstitutional there. I think that would be itself an anomalous and counterproductive content based distinction if the mere fact of the extremity of your speech isolated you from a constitutional from a requirement that would otherwise be constitutional.

Before you sit down, I think any other thank you, counsel. Mister Olson, you have four minutes remaining.

Thank you, mister chief justice. It is unquestionably the case that the government takes the position that any form of expression of expressive advocacy can be prohibited if it's done by a corporation. They say that on page twenty five and twenty six of their brief, whether it be books, yard signs, newspapers, or or or something printed for in printed form. And it's only because congress decided to address the most acute problem that they haven't. Congress didn't go ahead and decide to do that, which we submit would raise very, very serious constitutional questions, the same type of constitutional questions that we are talking about here.

And that's what

agree with you about that, but I thought what saves this many people thought that it doesn't save it, its whole thing is unconstitutional, the whole act. That isn't what I read or I or thought. So what saves this is, of course, you can't prohibit all those things. What you do is put limitations on the payment for them, see that there are other ways of paying for it, say, through PACs, and then limit very carefully the media that are affected and the times for which they are affected. Now that's the statute before us.

That And it's that I think you have

to address. Precisely. And five justices in Wisconsin Right to Life made the point that the PAC mechanism is burdensome and expensive. There are briefs in this case that demonstrate how much it is, and the and the and it's easier if you have lots of money if you are a big corporation and you can afford a PAC or you already have one. So it's a burden on the least capable of communicating.

See, often Can I ask this this question? You bring up Wisconsin right to life. Judge Randolph thought the chief justice's opinion in that case was controlling in this case. Do you think the chief justice's opinion in that case correctly stated the law?

Of of course. Do you? By

def by definition. I've got good hands here.

I wanna be sure because you're sometimes I don't think you're quite saying that. But if you agree with that opinion is correct.

What I am saying is I we accept the the court's decision in Wisconsin Right to Life to the extent that the court did not get to this type of documentary where the issue distinction, the false dichotomy between issues and

each candidate accept the test

that was stated in his opinion. The the no reasonable, not reasonably susceptible to any other interpretation. Of course, we do, justice Stevens. But we submit a ninety minute discussion of various different issues are subject to all kinds of interpretation. And when you get a long exposition of issues that are important to the public and someone says the government says, well, it's gonna be we can prohibit it.

And by the way, the government says, well, when we mean prohibit, we mean we just you can't use your union your corporate treasury funds. What they mean by prohibit is that they will put you in jail if you do it. They will put you in jail for five years. That means prohibited. Now what what we're we're getting at here when when you're trying to make a ninety minute movie that discusses things that are important to the public during an election of the highest officer of The United States, many people will interpret that as critical.

Many people will interpret it as supportive. There are things all over the lot, so it's subject to lots of different interpretations. The other thing is I heard justice I mean, mister, Stewart say that if there's one minute at the beginning, it doesn't happen it doesn't matter what the other eighty nine minutes are. We can prohibit it. Well, where is the person making a movie who wants to address the American public about something that's important to the American public?

There isn't any question about that. Where does he edit his movie? What cuts what does he leave on the drawing on the cutting room floor so that he won't have to go to jail? He won't dare take take the chance.

Thank you, counsel. The case is submitted.