Adam Liptak struggles to find a distinction between corporations in general and the so-called institutional media (which are usually corporations) in particular, in his piece on Citizens United and campaign finance reform. Of course, the is no distinction, or there shouldn’t be.
But that’s beside the point, the point at which the government lost the case. Liptak hints at it in his story when he writes,
Consider this telling exchange between Justice Samuel A. Alito Jr. and a lawyer for the Obama administration at the first of two arguments in Citizens United. The lawyer, Malcolm L. Stewart, said Congress had the power to regulate corporate speech about political candidates under the First Amendment.
“Most publishers are corporations,” Justice Alito said. “And a publisher that is a corporation could be prohibited from selling a book?”
It was a hypothetical question, but it cut to the core of the meaning of the press clause of the First Amendment. There was a lot of back and forth, and other justices jumped in. In the end, though, Mr. Stewart gave a candid answer.
“We could prohibit the publication of the book,” he said.
But Stewart was not talking about just any book with his answer. No, he was responding to a very specific question about a very specific kind of book.
I was out for a run and listening on my MP3 player to the exchange between Stewart and various Justices on this point (courtesy of the Oyez Project), and I remember saying to myself, “he [Stewart] just lost this case.” And this is where he lost it:
Justice Roberts: If it’s a 500-page book, and at the end it says, and so vote for X, the government could ban that?
Mr. Stewart: Well, if it says vote for X, it would be express advocacy and it would be covered by pre-existing Federal Election Campaign act provisions . . . we could prohibit the publication of the book using corporate treasury funds.
So, did you get that? One request that you vote for candidate X, at the end of a very long book, and zippo facto manulo, the government could ban that 500-page book published by a corporation under pre-Citizens United law, at least according to the government in the first oral argument. No wonder the Court ruled the way it did. No wonder, at least to me.
Liptak is right, however. The government backed away from that argument in reargument. Solicitor General Elena Kagan argued the case this time around, and she went nowhere near Stewart’s bold claim. But the damage was done, and in my view, the case had already been lost because, fortunately, five Justices couldn’t see their way clear to ban a 500-page book because of one pitch at the very end, a simple plea to “vote for X.”