Today the Supreme Court heard arguments again in the Citizens United case, in which a documentary critical of Hillary Clinton couldn’t be aired on direct tv during the primaries because it was funded with corporate expenditures. After today’s argument, the Court appears poised to overturn Austin, the case which held that a ban on direct corporate expenditures to influence elections does not violate the First Amendment. Justice Roberts is perhaps the swing vote in this case, and through questioning he elicited the government’s admission it was abandoning the reasoning behind the decision in Austin and inventing three new reasons to uphold the opinion, which clearly undermines the stare decisis value of the case.
Justice Kennedy is generally the swing vote on the Court, but he dissented in Austin and his questions in this case focused on the distinction in Buckley between contributions to candidates and direct political expenditures; the overbreadth of a ban on corporate expenditures when most corporations are small businesses with no distinction between the individual and the corporate entity; and the ongoing chilling effect on speech if the law’s application must be litigated case by case.
Justice Sotomayor made a bold statement about the Court possibly having made its first mistake in giving rights of personhood to corporations, but generally asked questions about deciding the case on narrower grounds.
Also of note, the Solicitor General, arguing on behalf of the Federal Election Commission, was asked to defend or abandon its earlier statement that books published with corporate money could be banned. General Kagan stated that “the government’s position has changed.” This prompted Ted Olson to say “the government’s position has changed” is the theme of the FEC’s case, as by the end of the argument it was no longer clear what media they thought might be covered by the law, what what type of corporation might be covered, and what rationale should uphold Austin.