Ted Olson sang a different tune today in the Supreme Court than the one he carried just six years ago. Back then, as the solicitor general in the Bush Administration, he was defending the McCain-Feingold campaign finance law against a sweeping attack.
But that was then. Today, representing a conservative interest group, he was decrying the law as smothering free expression with the “most complicated, expensive, incomprehensible regulatory regime ever created.”
Olson’s task was persuading the justices that a 90-minute docu-diatribe by a conservative group about Hillary Clinton’s alleged unfitness to be President somehow didn’t amount to the kind of advocacy the campaign finance reform law regulates.
He may have prevailed -- once the justices started grappling with how broadly a ruling against the anti-Hillary group could be applied.
Some background: McCain-Feingold prohibits corporations from spending general corporate money on advertisements about a particular candidate in the period before an election. Under the law, advertisements must be funded through Political Action Committees, and the donors disclosed during the broadcast.
At issue in the case is whether a 90-minute, relentlessly negative documentary called “Hillary: The Movie” by the corporation Citizens United amounted to the kind of advocacy that the law regulated. Citizens United wanted to show the movie through a “video-on-demand” cable television service, but the Federal Elections Commission (in the Bush Administration) said no.
The FEC said the documentary was the kind of “express advocacy” that was regulated under the law -- and therefore could not be financed with general corporate money.
A three-judge court agreed with the FEC, and Citizens United took its constitutional arguments to the Supreme Court, which in 2003 upheld the spending restrictions on certain “issue ads.”
Olson defended the law in 2003. Today, when he attacked it as being unconstitutionally applied, it was tougher sledding. Things got so bad that at one point---when Olson started bemoaning how the Court (trying to make sense of the “incomprehensible” campaign finance law over the years) had written 22 separate opinions--Justice John Paul Stevens quickly shot back:
“Maybe those cases presented more difficult questions than this one.”
Part of the problem was Olson’s struggle with pointed and repeated questions about why it should be constitutional for the law to regulate a one-minute political advertisement, but not what essentially amounts to a 90-minute one.
Justice David Souter: “This sounds to me like campaign advocacy.”
Justice Stephen Breyer: “If you can ban advertisements…Why is it different if it’s supplemented?”
Justice Anthony Kennedy: “You want me to write an opinion that if it’s 90 minutes…it’s different?”
Souter (again and again): “What is your basis for saying Congress is less concerned with a 90-minute (campaign ad) versus 60 seconds?”
It finally fell to Justice Scalia, at the very end of Olson’s argument, to answer Souter’s question:
“I thought your point,” he helpfully suggested to Olson, “is that one is covered by the Constitution and the other isn’t. It may be that speech in a serious 90-minute documentary is entitled to heightened Constitutional protection.”
Scalia added that the documentary also was different under the law because it was offered only to people who were interested—who wanted to get the “video on demand.”
“I agree with that completely, Justice Scalia,” Olson said.
But like the old saying that it’s darkest before the dawn, a lawyer for the Obama Administration stood up and gave Citizens United a hand by making the sweeping argument that Congress also could prohibit the publication of certain books if they were financed with corporate funds.
Justice Samuel Alito kicked that off when he politely asked whether a biography of a candidate—one that amounted to express advocacy--could be prohibited.
Deputy Solicitor General Malcolm Stewart said there were exceptions for media companies, but that the principle was the same: corporations engaging in express advocacy in the period before an election have to use PAC funds—not money from their general treasury -- even if they want to publish a book advocating a particular candidate.
That was almost too much for Justice Kennedy to take. And since Kennedy seemed to already be thinking about how he would write his opinion, it may also make the difference -- and tip the scales for Hillary: The Movie.