In September, when the U.S. Supreme Court held its second round of oral argument in Citizens United v. FEC, Solicitor General Elena Kagan took the unusual step of backing away from a point made months earlier by a deputy. "The government's answer has changed," she said, and it no longer believes that the Federal Election Commission has the authority to restrict or ban books.
But opponents of strict campaign finance limits aren't ready to let the point go.
In two congressional hearings today, advocates for corporate and union spending in campaigns ridiculed the idea that the federal government can ban books, suggesting that they plan to use the specter of extreme censorship to try to block any new legislation.
“Have we gone so far that we believe the banning of books is allowed under the First Amendment?” asked Rep. Dan Lungren (R-Calif.). Lungren was speaking during a hearing before the House Administration Committee, on which he’s the top Republican.
The idea was raised earlier today by Sean Parnell, president of the Center for Competitive Politics. He told a House Judiciary subcommittee that, by making the book-banning argument, proponents of strict financing rules sunk their own case and invited a sweeping ruling by the Supreme Court.
The government’s initial argument, allowing for restrictions on books, has complicated its position since Deputy Solicitor General Malcolm Stewart made it in March 2009. In the first round of oral argument for Citizens United, Stewart defended the FEC’s restrictions on distributing “Hillary: The Movie.” Justice Samuel Alito Jr. asked whether the FEC could restrict a book version of the movie, and Stewart replied that it could do so if corporate treasury funds were involved.
Questions and comments followed from Justice Anthony Kennedy and Chief Justice John Roberts Jr. “If we accept your constitutional argument,” Roberts told Steward then, “we’re establishing a precedent that you yourself say would extend to banning the book.”
Gibson, Dunn & Crutcher’s Theodore Olson returned to the point in September, describing the ban on corporate expenditures unconstitutional. Kagan told the justices that their earlier reaction caused her to re-examine the situation “very carefully,” and she noted that the FEC had never taken action against the distribution or publication of a book.