The full transcript from yesterday’s Citizens United arguments has been released by SCOTUS. SCOTUSblog has links to both the transcript and the tape of oral argument, made available from PBS Newshour.
Depending on the outcome of the case, there could be a reversal of laws which sought to balance speech rights against a compelling interest to prevent public corruption that go all the way back to Taft-Hartley and beyond.
Nina Totenberg hit the nugget of the day squarely in her NPR reporting: "When Olson argued that Congress must have a compelling reason to limit corporate speech, Justice Stephen Breyer said the compelling argument is that "people think representatives are being bought."
Lyle Denniston has some excellent analysis as well, including:
Kennedy was less aggressive in his questioning, but openly voiced concern that government arguments for leaving intact the two precedents against corporate political spending would undercut the Court’s 1976 decision in Buckley v. Valeo, finding constitutional free speech rights in political spending by all sources, corporations included. And he said those precedents meant that corporations would be “silenced” when they had contributions to make to public policy by speaking out during campaigns.
The core problem with those prior rulings, Kennedy said, was that they “chill expression” based on the speaker. “There is no place where an ongoing chill is more dangerous than in the election context,” he commented.
As in every case the last few years that has had a close divide, satisfying Kennedy’s concerns will likely be the path to the majority.
Reading through the transcript, several things jumped out at me including the gulf between core beliefs of the Justices, and the weighing of the public’s interest in curbing corruption versus the corporate interests. It’s fascinating stuff.
See if you can guess which justices said each of the following from the SCOTUS bench:
(1) Do you think Congress could prevent foreign individuals from funding speech in United States elections?
(2) Well, Mr. Olson, do you think that media corporations that are owned or principally owned by foreign shareholders have less First Amendment rights than other media corporations in the United States?
(3) So here the obvious argument is: Look, they said the compelling interest is that people think that representatives are being bought, okay? That’s to put it in a caricature, but you understand what I’m driving at, okay? That’s what they said in Buckley v. Valeo. So Congress now says precisely that interest leads us to want to limit the expenditures that corporations can make on electioneering communication in the last 30 days of a primary, over-the-air television, but not on radio, not on books, not on pamphlets, not on anything else. . . .So in what respect is there not conceptually at least a compelling interest and narrow tailoring?
(4) . . .once we say [State and Federal legislatures can't balance electoral process needs and First Amendment rights], except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process? Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.
(5) Congress has a self-interest. I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.
(6) But under your position, if corporations A, B, and C, are called to Washington every Monday morning by a high-ranking administrative official or a high-ranking member of the Congress with a committee chairmanship and told to tow the line and to tell their directors and shareholders what the policy ought to be, some other corporation can’t object to that during the election cycle. The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject. Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election.
(7) But it is extraordinary — I mean, the — the idea and as I understand the rationale, we — we the government, big brother, has to protect shareholders from themselves. They might give money, they might buy shares in a corporation and they don’t know that the corporation is taking out radio ads. The government has to keep an eye on their interests.
(8) In that respect, it’s unlike the union, because the — the worker who does not want to affiliate with a union cannot have funds from his own pocket devoted to political causes. But there is no comparable check for corporations.
(9) But we don’t put our — we don’t put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
(10) . . .there is nothing unusual whatsoever about a case in which a party before the Court says, my constitutional rights were violated, and there is no prior decision of this Court holding that what was done is constitutional. And in that situation is it an answer to that argument that this has never been challenged before? The Court has never held that it was unconstitutional? It has been accepted up until this point by the general public that this is — that this is constitutional? No, that is not regarded as an answer to that question.
Answers: (1) Scalia; (2) Alito; (3) Breyer; (4) Sotomayor; (5) Scalia; (6) Kennedy; (7) Roberts; (8) Ginsburg; (9) Roberts; (10) Alito