Member No.: 1
Joined: 1-May 07
|The court, in its 5-4 decision in Citizens United v. Federal Election Commission, ruled against Kagan’s contention that the government can limit political speech by corporations.|Citzens United Supreme Court Case:http://z4.invisionfree.com/The_Great_Decep...?showtopic=7921Kagan makes debut as Court hears reargument in Citizens United v. FEChttp://www.law.harvard.edu/news/spotlight/...law/10_fec.htmlOral Reargument she made with Seth Waxman (Wonder if he is related to Henry Waxman?):http://www.oyez.org/cases/2000-2009/2008/2..._205/reargument
ORAL ARGUMENT OF ELENA KAGAN ON BEHALF OF THE APPELLEE
General Kagan: Mr. Chief Justice and may it please the Court: I have three very quick points to make about the government position.
The first is that this issue has a long history.
For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.
Justice Scalia: Wait, wait, wait, wait.
We never questioned it, but we never approved it, either.
And we gave some really weird interpretations to the Taft-Hartley Act in order to avoid confronting the question.
General Kagan: --I will repeat what I said, Justice Scalia: For 100 years this Court, faced with many opportunities to do so, left standing the legislation that is at issue in this case (.) first the contribution limits, then the expenditure limits that came in by way of Taft-Hartley (.) and then of course in Austin specifically approved those limits.
Justice Scalia: I don't understand what you are saying.
I mean, we are not a self (.) self-starting institution here.
We only disapprove of something when somebody asks us to.
And if there was no occasion for us to approve or disapprove, it proves nothing whatever that we didn't disapprove it.
General Kagan: Well, you are not a self-starting institution.
But many litigants brought many cases to you in 1907 and onwards and in each case this Court turns down, declined the opportunity, to invalidate or otherwise interfere with this legislation.
Justice Kennedy: But that judgment was validated by Buckley's contribution-expenditure line.
And you're correct if you look at contributions, but this is an expenditure case.
And I think that it doesn't clarify the situation to say that for 100 years (.) to suggest that for 100 years we would have allowed expenditure limitations, which in order to work at all have to have a speaker-based distinction, exemption from media, content-based distinction, time-based distinction.
We've never allowed that.
General Kagan: Well, I think Justice Stevens was right in saying that the expenditure limits that are in play in this case came into effect in 1947, so it has been 60 years rather than 100 years.
But in fact, even before that the contribution limits were thought to include independent expenditures, and as soon as Congress saw independent expenditures going on Congress closed what it perceived to be a loophole.
So in fact for 100 years corporations have made neither contributions nor expenditures, save for a brief period of time in the middle 1940's, which Congress very swiftly reacted to by passing the Taft-Hartley Act.
Now, the reason that Congress has enacted these special rules (.) and this is the second point that I wanted to make--
Justice Stevens: Before you go to your second point, may I ask you to clarify one part of the first, namely, your answer to the question I proposed to Mr. Olson, namely, why isn't the Snowe-Jeffords Amendment, which was picked on by Congress itself, an (.) and which is argued by the NRA, an appropriate answer to this case?
General Kagan: --That was my third point, Justice Stevens.
Justice Stevens: Oh, I'm sorry.
General Kagan: So we will just skip over the second.
My third point is that this is an anomalous case in part because this is an atypical plaintiff.
And the reason this is an atypical plaintiff is because this plaintiff is an ideological nonprofit and--
Chief Justice Roberts: So you are giving up (.) you are giving up the distinction from MCFL that you defended in your opening brief?
There you said this doesn't qualify as a different kind of corporation because it takes corporate funds, and now you are changing that position?
General Kagan: --No, I (.) I don't think we are changing it.
MCFL is the law, and the FEA (.) FEC has always tried to implement MCFL faithfully.
And that's what the FEC has tried to do.
But if you--
Chief Justice Roberts: So I guess (.) do you think MCFL applies in this case even though the corporation takes corporate funds from for-profit corporations?
General Kagan: --I don't think MCFL as written applies in this case, but I think that the Court could, as lower courts have done, adjust MCFL potentially to make it apply in this case, although I think that would require a remand.
What lower courts have done (.) MCFL was set up, it was written in a very strict kind of way so that the organization had to have a policy of accepting no corporate funds whatsoever.
Some of the lower courts, including the D.C. Circuit, which, of course, sees a lot of these cases, have suggested that MCFL is too strict, that it doesn't--
Chief Justice Roberts: Do you (.) do you think it's too strict?
General Kagan: --I (.) I (.) the FEC has no objection to MCFL being adjusted in order to (.) to give it some flexibility.
Chief Justice Roberts: So you want to give up this case, change your position, and basically say you lose solely because of the questioning that we have directed on reargument?
General Kagan: --Solely because?
I am sorry?
Chief Justice Roberts: Because of the question we have posed on reargument.
General Kagan: No, I don't think that that is fair.
We think (.) we continue to think that the (.) the judgment below should be affirmed.
If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.
Chief Justice Roberts: What case of ours (.) what case of ours suggests that there is a hierarchy of bases on which we should rule against a party when both of them involve constitutional questions?
Extending (.) modifying MCFL would be, I assume, by virtue of the First Amendment.
Overruling Austin would be by virtue of the First Amendment.
So what case says we should prefer one as opposed to the other?
General Kagan: I think the question really is the Court's standard practice of deciding as-applied challenges before facial challenges.
And this case certainly raises a number of tricky as-applied questions.
One is the question of how the (.) the statute applies to nonprofit organizations such as this one.
Another is a question of how it applies to VOD transmissions.
Yet another is the question of how it applies to a 90-minute infomercial as opposed to smaller advertisements.
Justice Kennedy: But if you (.) if you insist on the as-applied challenge, isn't that inconsistent with the whole line of cases that began in Thornhill v. Alabama and Coates v. Cincinnati?
What about the Thornhill doctrine?
It is not cited in the briefs, but that doctrine is that even a litigant without standing to object to a particular form of conduct can raise that if the statute covers it in order that the statute does not have an ongoing chill against speech.
And there is no place where an ongoing chill is more dangerous than in the elections context.
General Kagan: Well, I think even--
Justice Kennedy: So you are asking us to have an ongoing chill where we have as-applied challenges which are based on, as I indicated before, speaker, content, time, and this is the kind of chilling effect that the Thornhill doctrine stands directly against.
General Kagan: --You know, I think even in the First Amendment context, Justice Kennedy, the Court will not strike down a statute on its face unless it finds very substantial overbreadth, many applications of the statute that are unconstitutional, as opposed to just a few or just some.
What I am suggesting here is that the Court was right in McConnell and then confirmed in WRTL to find that BCRA, which is of course the only statute directly involved in this case, did not have that substantial overdraft.
Justice Kennedy: Let me ask you this.
Suppose that we were to rule that nonprofit corporations could not be covered by the statute.
Would that (.) would the statute then have substantial overbreadth?
General Kagan: Well, I would urge you not to do that in that kind of sweeping way, because the reason for the nonprofit corporations being covered is to make sure that the nonprofit corporations don't function as conduits for the for-profit corporations.
Justice Kennedy: But suppose we were to say that.
Would the statute then not be substantially overbroad?
General Kagan: Well, I don't think that the statute is substantially overbroad right now.
So if you took out certain applications, I can't think--
Justice Kennedy: But I am asking you to assume that we draw the nonprofit/profit distinction.
Then the statute, it seems to me, clearly has to fall because, number one, we couldn't sever it based on the language.
General Kagan: --I see what you are saying.
Well, you could do a couple of things.
You could do what Justice Stevens suggested.
Justice Stevens suggested (.) I suggested to Chief Justice Roberts--
Justice Stevens: I don't think you (.) I don't think you really caught what I suggested because you treated it as an enlargement of the MCFL example.
General Kagan: --I was going to go back.
Justice Stevens: But that is not what the National Rifle Association argues or what Snowe-Jeffords covers.
It covers ads that are financed exclusively by individuals even though they are sponsored by a corporation.
General Kagan: Yes, that's exactly right.
What you are suggesting, Justice Stevens, is essentially stripping the Wellstone amendment from the--
Justice Stevens: Correct and treating the Snowe-Jeffords amendment as being the correct test.
And nobody has explained why that wouldn't be a proper solution, not nearly as drastic as (.) as being argued here.
General Kagan: --Yes, and there are some, you know (.) there are (.) there are some reasons that that might (.) that might be appropriate.
The Wellstone amendment was a funny kind of thing.
It was passed very narrowly, but beyond that it was passed with a (.) a really substantial support of many people who voted against the legislation in the end, presumably as a poison pill.
Justice Breyer: Well, if we (.) if we go (.) if we go that route, what we are doing is creating an accounting industry, aren't we?
Corporations give huge amounts of money to the C-4 organization, and then somebody, perhaps the FEC, has to decide whether in fact that is a way of subverting the prohibition against the direct payment for the communication, right?
Okay, so Congress said, we don't want that.
Congress said, that's going to be a nightmare, and we decide Wellstone, for whatever reasons.
Now don't we have to focus on whether Congress can say that or whether it can't?
Justice Stevens: But--
Justice Breyer: And I don't know why it cannot say it.
Justice Stevens: --Congress also said if you strike down the Wellstone amendment, we want the Snowe (.) Jeffords amendment.
Justice Breyer: That's true.
Justice Stevens: And why shouldn't we follow that direction?
General Kagan: If you strike down the Wellstone amendment, what is left is the Snowe-Jeffords amendment--
Justice Stevens: Right.
General Kagan: --which allows nonprofit organizations of the kind here to fund these ads out of separate bank accounts, not PACs just separate bank accounts--
Justice Stevens: Correct.
General Kagan: --which include only individual expenditures.
Justice Stevens: Then why is that not the (.) the wisest narrow solution of the problem before us?
General Kagan: Well, it is (.) it is certainly a narrower and I think better solution than a facial invalidation of the whole statute.
Chief Justice Roberts: Counsel, what do you (.) what do you understand to be the compelling interest that the Court articulated in Austin?
General Kagan: I think that what the Court articulated in Austin (.) and, of course, in the government briefs we have suggested that Austin did not articulate what we believe to be the strongest compelling interest, which is the anticorruption interest.
But what the Court articulated in Austin was essentially a concern about corporations using the corporate form to appropriate other people's money for expressive purposes.
Chief Justice Roberts: Right.
So but you (.) you have more or less (.) "abandoned" is too strong a word, but as you say you have relied on a different interest, the quid pro quo corruption.
And you (.) you articulate on page 11 of your brief (.) you recognize that this Court has not accepted that interest as a compelling interest.
So isn't it the case that as you view Austin it is kind of up for play in the sense that you would ground it on an interest that the Court has never recognized?
General Kagan: Well, a couple of points.
The first thing is, as you say, we have not abandoned Austin.
We have simply said that in addition--
Chief Justice Roberts: Where--
General Kagan: --to other people's money interest that--
Chief Justice Roberts: --Where in your (.) where in your supplemental briefing do you say that this aggregation of wealth interest supports Austin?
General Kagan: --I would not really call it an aggregation of wealth interest.
I would say that it's (.) it's a concern about corporate use of other people's money to--
Chief Justice Roberts: Putting it outside, putting the quid pro quo interest aside, where in your supplemental briefing do you support the interest that was articulated by the Court in Austin?
General Kagan: --Where we talk about shareholder protection and where we talk about the distortion of the electoral process that occurs when corporations use their shareholders' money who may or may not agree--
Chief Justice Roberts: I understand that to be a different interest.
That is the shareholder protection interest as opposed to the fact that corporations have such wealth and they (.) they distort the marketplace.
General Kagan: --Well, I (.) I think that they are connected because both come--
Chief Justice Roberts: So (.) so am I right then in saying that in the supplemental briefing you do not rely at all on the market distortion rationale on which Austin relied; not the shareholder rationale, not the quid pro quo rationale, the market distortion issue.
These corporations have a lot of money.
General Kagan: --We do not rely at all on Austin to the extent that anybody takes Austin to be suggesting anything about the equalization of a speech market.
So I know that that's the way that many people understand the distortion rationale of Austin, and if that's the way the Court understands i, we do not rely at all on that.
Justice Ginsburg: So--
Chief Justice Roberts: So if we have to preserve (.) if we are going to preserve Austin we have to accept your invitation that the quid pro quo interest supports the holding there or the shareholder protection interest.
General Kagan: I would say either the quid pro quo interest, the corruption interest or the shareholder interest, or what I would say is a (.) is something related to the shareholder interest that is in truth my view of Austin, which is a view that when corporations use other people's money to electioneer, that is a harm not just to the shareholders themselves but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.
Justice Scalia: Let's (.) let's talk about overbreadth.
You've (.) let's assume that that is a valid interest.
What percentage of the total number of corporations in the country are not single shareholder corporations?
The local hairdresser, the local auto repair shop, the local new car dealer (.) I don't know any small business in this country that isn't incorporated, and the vast majority of them are sole-shareholder-owned.
Now this statute makes it unlawful for all of them to do the things that you are worried about, you know, distorting other (.) the interests of other shareholders.
That is vast overbreadth.
General Kagan: You know, I think that the single shareholders can present these corruption problems.
Many, many closed corporations, single shareholder corporations--
Justice Scalia: I'm not talking about the corruption interest.
You (.) you have your quid pro quo argument, that's another one.
We get to that when we get there.
But as far as the interest you are now addressing, which is those shareholders who don't agree with this political position are being somehow cheated, that doesn't apply probably to the vast majority of corporations in this country.
General Kagan: --You are quite right, Justice Scalia, when (.) we say when it comes to single shareholders, the kind of "other people's money" interests, the shareholder protection interests do not apply.
Justice Scalia: So that can't be the justification--
General Kagan: --There--
Justice Scalia: --because if it were, the statute would be vastly overbroad.
General Kagan: --There the strongest justification is the anticorruption interest.
Justice Alito: Well, with respect to that what is your answer to the argument that more than half the States, including California and Oregon, Virginia, Washington State, Delaware, Maryland, a great many others, permit independent corporate expenditures for just these purposes?
Now have they all been overwhelmed by corruption?
A lot of money is spent on elections in California; has (.) is there a record that the corporations have corrupted the political process there?
General Kagan: I think the experience of some half the States cannot be more important than the 100-year old judgment of Congress that these expenditures would corrupt the Federal system, and I think that--
Justice Scalia: 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.
General Kagan: --I think, Justice Scalia, it's wrong.
In fact, corporate and union money go overwhelmingly to incumbents.
This may be the single most self-denying thing that Congress has ever done.
If you look (.) if you look at the last election cycle and look at corporate PAC money and ask where it goes, it goes ten times more to incumbents than to challengers, and in the prior election cycle even more than that.
And for an obvious reason, because when corporations play in the political process, they want winners, they want people who will produce outcomes for them, and they know that the way to get those outcomes, the way to get those winners is to invest in incumbents, and so that's what they do.
As I said, in double digits times more than they invest in challengers.
So I think that that (.) that that rationale, which is undoubtedly true in many contexts, simply is not the case with respect to this case.
Justice Kennedy: 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.
General Kagan: Well--
Justice Kennedy: When other corporations, via (.) because of the very fact you just point out, have already been used and are being used by the government to express its views; and you say another corporation can't object to that.
General Kagan: --Well, to the extent, Justice Kennedy, that you are talking about what goes on in the halls of Congress, of course corporations can lobby members of Congress in the same way that they could before this legislation.
What this legislation is designed to do, because of its anticorruption interest, is to make sure that that lobbying is just persuasion and it's not coercion.
But in addition to that, of course corporations have many opportunities to speak outside the halls of Congress.
Justice Stevens: One of the amicus briefs objects to (.) responds to Justice Kennedy's problem by saying that the problem is we have got to contribute to both parties, and a lot of them do, don't they?
General Kagan: A lot of them do, which is a suggestion about how corporations engage the political process and how corporations are different from individuals in this respect.
You know, an individual can be the wealthiest person in the world but few of us (.) maybe some (.) but few of us are only our economic interests.
We have beliefs, we have convictions; we have likes and dislikes.
Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.
Chief Justice Roberts: Well, that's not (.) I'm sorry, but that seems rather odd.
A large corporation just like an individual has many diverse interests.
A corporation may want to support a particular candidate, but they may be concerned just as you say about what their shareholders are going to think about that.
They may be concerned that the shareholders would rather they spend their money doing something else.
The idea that corporations are different than individuals in that respect, I just don't think holds up.
General Kagan: Well, all I was suggesting, Mr. Chief Justice, is that corporations have actually a fiduciary obligation to their shareholders to increase value.
That's their single purpose, their goal.
Chief Justice Roberts: So if a candidate (.) take a tobacco company, and a candidate is running on the platform that they ought to make tobacco illegal, presumably that company would maximize its shareholders' interests by opposing the election of that individual.
General Kagan: But everything is geared through the corporation's self-interest in order to maximize profits, in order to maximize revenue, in order to maximize value.
Individuals are more complicated than that.
So that when corporations engage the political process, they do it with that set of you know, blinders (.) I don't mean it to be pejorative, because that's what we want corporations to do, is to--
Chief Justice Roberts: Well, I suppose some do, but let's say if you have ten individuals and they each contribute $1,000 to a corporation, and they say,
"we want this corporation to convey a particular message. "
why can't they do that, when if they did that as partnership, it would be all right?
General Kagan: --Well, it sounds to me as though the corporation that you were describing is a corporation of the kind we have in this case, where one can assume that the members all sign on to the corporation's ideological mission, where the corporation in fact has an ideological mission.
Justice Scalia: General Kagan, most (.) most corporations are indistinguishable from the individual who owns them, the local hairdresser, the new auto dealer (.) dealer who has just lost his dealership and (.) and who wants to oppose whatever Congressman he thinks was responsible for this happening or whatever Congressman won't try to patch it up by (.) by getting the auto company to undo it.
There is no distinction between the individual interest and the corporate interest.
And that is true for the vast majority of corporations.
General Kagan: Well--
Justice Scalia: Yet this law freezes all of them out.
General Kagan: --To the extent that we are only talking about single shareholder corporations, I guess I would ask why it's any burden on that single shareholder to make the expenditures to participate in the political person in the way that person wants to outside the corporate forum?
So single shareholders aren't suffering any burden here; they can do everything that they could within the corporate form, outside the corporate form.
They probably don't get the tax breaks that they would get inside the corporate form, but I'm not sure anything else is very different.
Justice Scalia: Oh, he wants to put up a sign--
Justice Stevens: Ultra Vires would take care of about 90 percent of the small corporations that Justice Scalia is talking about.
They can't just (.) they can't even give money to charities sometimes because of Ultra Vires.
Giving political contributions is not typical for corporate activity.
Justice Breyer: Is (.) I (.) I remember spending quite a few days one summer reading through 1,000 pages of opinion in the D.C. Circuit.
And I came away with the distinct impression that Congress has built an enormous record of support for this bill in the evidence.
And my recollection is, but it is now a couple of years old, that there was a lot of information in that which suggested that many millions of voters think, at the least, that large corporate and union expenditures or contributions in favor of a candidate lead the benefited political figure to decide quite specifically in favor of the (.) of the contributing or expending organization, the corporation or the union.
General Kagan: Yes, that's--
Justice Breyer: Now, it was on the basis of that, I think, that this Court upheld the law in BCRA.
But we have heard from the other side there isn't much of a record on this.
So, if you could save me some time here, perhaps you could point me, if I am right, to those thousand pages of opinion and tens of thousands of underlying bits of evidence where there might be support for that proposition?
General Kagan: --Yes, that's exactly right, Justice Breyer, that in addition to the 100-year old judgment that Congress believes this is necessary, that very recently members of Congress and others created a gigantic record showing that there was corruption and that there was the appearance of corruption.
And in that record, many times senators, former senators talk about the way in which fundraising is at the front of their mind in everything that they do the way in which they grant access, the way in which they grant influence, and the way in which outcomes likely change as a result of that fundraising.
Justice Breyer: BCRA has changed all that.
Chief Justice Roberts: Counsel, could I ask, it seems (.) to your shareholder protection rationale, isn't it extraordinarily paternalistic for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it?
General Kagan: I don't think so, Mr. Chief Justice.
I mean, I, for one, can't keep stack of what my (.) where I hold--
Chief Justice Roberts: You have a busy job.
You can't expect everybody to do that.
General Kagan: --It's not that (.) it's not that I have a busy job.
Chief Justice Roberts: 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.
General Kagan: I appreciate that.
It's not that I have a busy job, it's that I, like most Americans, own shares through mutual funds.
If you don't know where your mutual funds are investing, so you don't know where you are--
Chief Justice Roberts: So it is (.) I mean, I understand.
So it is a paternalistic interest, we the government have to protect you naive shareholders.
General Kagan: --In a world in which most people own stock through mutual funds, in a world where people own stock through retirement plans in which they have to invest, they have no choice, I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing or even to know the extent of the--
Justice Ginsburg: --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.
General Kagan: --That's exactly right, Justice Ginsburg.
In the union context, of course, it's a constitutional right that the unions give back essentially the funds that any union member or employee in the workplace does not want used for electoral purposes.
Justice Ginsburg: Does that mean that unions should be taken out, because there isn't the same (.) the shareholder protection interest doesn't (.) there is no parallel for the union?
General Kagan: You are right about that.
But I (.) the government believes that with respect to unions, the anticorruption interest is as strong, and that unions should be kept in.
I think what your point suggests, that the (.) that the union member point suggests why Congress might have thought that there was a compelling interest to protect corporate shareholders in the same way that, let's say, dissenting union members are protected by the Constitution.
There is no State action, of course, so there is no constitutional right in the corporate context.
But Congress made a judgment that it was an important value that shareholders have this choice, have the ability both to invest in our country's assets and also to be able to choose our country's leaders.
Chief Justice Roberts: It's not investing in our country's--
Justice Kennedy: In the course of this argument, have you covered point two?
General Kagan: I very much appreciate--
Justice Kennedy: And I would like to know what it is, so that I (.) my notes are complete.
General Kagan: --I very appreciate that, Justice Kennedy.
I think I did cover point two, which was an explanation of some of the questions that the Chief Justice asked me about what interests the government was suggesting motivated these laws and are compelling enough such that this Court certainly should not invalidate these laws.
Chief Justice Roberts: --I take it we have never accepted your shareholder protection interest.
This is a new argument.
General Kagan: I think that that's fair.
Certainly Bellotti does not accept it.
I would think (.) you know, National Right to Work is an interesting opinion, because National Right to Work accepts for a unanimous court both the shareholder protection argument and the anticorruption argument with respect to the section 441b in particular.
Now, in later cases the Court has suggested that National Right to Work was only focused on contributions.
If you read National Right to Work, that distinction really does not (.) it's not evident on the face of the opinion, and I think Chief Justice Rehnquist at later (.) in a later dissent suggested that he had never understood it that way.
But (.) so National Right to Work is a confusion on this point.
Chief Justice Roberts: Well, I guess other than that, and I think there may be some ambiguity there, but I wouldn't say NRWC is a holding on shareholder protection.
So to the extent that you abandoned the original rationale in Austin, and articulated different rationales, you have two, the quid pro quo corruption interest and the shareholder protection interest--
General Kagan: --Which we think is not in Austin.
Chief Justice Roberts: --Austin, I thought, was based on the aggregation of immense wealth by corporations.
General Kagan: Again, Austin is not the most lucid opinion.
But the way we understand Austin, what Austin was suggesting was that the corporate form gave corporations significant assets, other people's money that when the corporations spent those assets--
Chief Justice Roberts: Can you (.) can you give me the citation to the page in Austin where we accepted the shareholder protection rationale?
General Kagan: --I think it comes when the (.) when the Court is distinguishing MCFL.
And the message of that distinction of MCFL is the shareholder protection interest?
Chief Justice Roberts: Do the words "shareholder" (.) I don't know, do the words "shareholder protection" appear in the Austin opinion?
General Kagan: --I honestly don't know, Mr. Chief Justice.
And (.) and I don't want to--
Chief Justice Roberts: If they don't (.) let's assume they don't, then I get back to my question, which is, you are asking us to defend the Austin or support or continue the Austin opinion on the basis of two rationales that we have never accepted, shareholder protection and quid pro quo corruption?
General Kagan: --I would say on the quid pro quo corruption, of course you have accepted that rationale--
Chief Justice Roberts: In the context of contributions, not expenditures.
General Kagan: --That's correct.
And I think what has changed since (.) since that time is the BCRA record that Justice Breyer suggested, which was very strong on the notion that there was no difference when it came to corporate contributions and expenditures, that there actually was no difference between the two.
Chief Justice Roberts: Is that a yes?
Is that a yes?
In other words, you are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted, in expenditure context.
General Kagan: --In this (.) in this particular context, fair enough.
But, you know, I think--
Justice Kennedy: And to undercut Buckley in so doing?
General Kagan: --Well, I don't think so, because I do think Buckley was about individuals rather than corporations, and Buckley was in 1976, not in 2009, after the very extensive record that was created in BCRA.
I see my time is up.
Justice Ginsburg: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies?
Last time the answer was, yes, Congress could, but it didn't.
Is that (.) is that still the government's answer?
General Kagan: --The government's answer has changed, Justice Ginsburg.
It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media.
And we took what the Court (.) what the Court's (.) the Court's own reaction to some of those other hypotheticals very seriously.
We went back, we considered the matter carefully, and the government's view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context.
And I should say that the FEC has never applied 441b in that context.
So for 60 years a book has never been at issue.
Justice Scalia: --What happened to the overbreadth doctrine?
I mean, I thought our doctrine in the Fourth Amendment is if you write it too broadly, we are not going to pare it back to the point where it's constitutional.
If it's overbroad, it's invalid.
What has happened to that.
General Kagan: I don't think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book.
To say that it doesn't apply to books is to take off, you know, essentially nothing.
Chief Justice Roberts: 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?
General Kagan: I think a (.) a pamphlet would be different.
A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print.
Justice Alito: Well, what if the particular (.) what if the particular movie involved here had not been distributed by Video on Demand?
Suppose that people could view it for free on Netflix over the internet?
Suppose that free DVDs were passed out.
Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.
In light of your retraction, I have no idea where the government would draw the line with respect to the medium that could be prohibited.
General Kagan: --Well, none of those things, again, are covered.
Justice Alito: No, but could they?
Which of them could and which could not?
I understand you to say books could not.
General Kagan: Yes, I think what you (.) what we're saying is that there has never been an enforcement action for books.
Nobody has ever suggested (.) nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that.
Justice Scalia: So you're (.) you are a lawyer advising somebody who is about to come out with a book and you say don't worry, the FEC has never tried to send somebody to prison for this.
This statute covers it, but don't worry, the FEC has never done it.
Is that going to comfort your client?
I don't think so.
Justice Ginsburg: But this (.) this statute doesn't cover.
It doesn't cover books.
General Kagan: No, no, that's exactly right.
The only statute that is involved in this case does not cover books.
So 441b which--
Chief Justice Roberts: Does cover books.
General Kagan: --which does cover books, except that I have just said that there would be a good as-applied challenge and that there has been no administrative practice of ever applying it to the books.
And also only applies to express advocacy, right?
203 has (.) is (.) is (.) has a broader category of the functional equivalent of express advocacy, but 441b is only express advocacy, which is a part of the reason why it has never applied to a book.
One cannot imagine very many books that would meet the definition of express advocacy as this Court has expressed that.
Chief Justice Roberts: Oh, I'm sorry, we suggested some in the last argument.
You have a history of union organizing and union involvement in politics, and the last sentence says in light of all this, vote for Jones.
General Kagan: I think that that wouldn't be covered, Mr. Chief Justice.
The FEC is very careful and says this in all its regulations to view matters as a whole.
And as a whole that book would not count as express advocacy.
Chief Justice Roberts: Thank you, General.