Sometimes Congress Shall Make A Law....But Can They?

Over the past few weeks we've explored several First Amendment cases on this session's Supreme Court docket. Today we will preview what may end up become the most important of these cases. Citizens United vs. Federal Elections Commission is a case that squarely attacks the Bipartisan Campaign Reform Act, more commonly known as the McCain-Feingold Law.

The purpose of McCain-Feingold is to regulate and restrict financing of political campaigns. It specifically targets two methods of advocacy: 1) Limiting the amount of money that can be raided for political action committees and 2) Restricting "issue advocacy adds" so that they can generally not be used to attack individual candidates within at least 30-days from an election.

The main ideas of McCain-Feingold are 1) since restrictions were already in place for how much money could go to individual candidates, groups got around the restriction by not raising money for individuals but for Political Action Committees (or PACs) which in turn would support a particular candidate using the money raised and 2) Issue-advocacy ads are generally used as "attack" ads and therefore not informative. Accordingly there are time restriction on when these ads can be run.

Critics, however, point out 1) there is no evidence that raising money for a PAC has proved to be by itself a direct source of corruption and 2) Politicians, like those which passed the law, have a self-serving interest in stopping attack ads since it is usually the incumbent with a record who is most vulnerable to attack.

But perhaps most importantly, critics argue that the law on its face is in direct violation of the First Amendment's directive that "Congress shall make no law...abridging the freedom of speech... or of the the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It has been held as to become a basic foundation of law, that Political Expression is the very essence of Freedom of Speech.

The butting of the First Amendment with McCain-Feingold became crystalized when former Deputy Solictor General Malcolm Stewart, representing the FEC before the Supreme Court argued last March that under the provisions of McCain-Feingold, the government has the "power to ban books," if those books expressly advocacated for a candidate during the restricted period. The general reaction to the Solicitor's concession was one of shock. If there is one provision that has essentially remained undisturbed in the history of American jurisprudence is that it is only in extremely rare and exceptional circumstances that the Government has the power to ban books.

The controversy began when Citizens: United produced a film called Hillary:The Movie which was essentially an attack ad by the group, a Conservative Non-Profit advocacy organization against Hillary Clinton who at the time was running for President. The FEC banned the movie as an "electioneering communication which had no purpose other than to advocate against a candidate." The CU argued the film was fact-based and that they were non-partisan. A Federal District Court ruled against them.

The case was appealed, however, and reached the Supreme Court where Stewart made his statement. But then, after argument, something extraordinary happened. The Supreme Court directed an order that the case be reargued, and in fact, was placed as the first case on the Court's calendar this session. In fact, it was the first formal argument that took place in front of newly instally Justice Sonia Sontomayor.

This time, representing the FEC, was the Obama-administration's newly appointed Solicitor Elena Kagan who took a more conciliatory tone. She suggested that it may have been wrong to restrict Citizens United. What the Supreme Court should not do, she said, is overrule the law entirely. In other words she was throwing her sword down on the case to try to save the law.

Chief Justice John Roberts spotting the tactic asked Kagan outright “So you want to give up this case, change your position, and basically say you lose solely because of the questioning we have directed on re-argument?”

Kagan replied that she was not giving up the case but, “If you are asking me, Mr. Chief Justice, as to whether the government has a position as to the way it loses, if it has to lose, the answer is yes.” In other words, she doesn't want to lose but concedes defeat.

Although a decision has not been issued yet, it is clear that even if the government is agreeing that Citizens United should not be censured, they are going to lose the case. The questions however remain, with the defeat of the case, what will be the shape of the Campaign Finance Reform laws after the Supreme Court has its say and will whatever decision rendered, be, in any way compatible with the McCain-Feingold law or will campaign-finance regulations ultimately die despite the best of intentions?