A.P. has a few more details that help explain why opponents of legal restrictions on political speech are optimistic, following today's second round of oral arguments in Citizens United v. FEC, that the Supreme Court will declare the Bipartisan Campaign Reform Act's ban on "electioneering communications" unconstitutional and overturn a 1990 decision that upheld limits on independent campaign expenditures by corporations (including nonprofit advocacy groups). Chief Justice John Roberts, one of the two justices who will have to side with Anthony Kennedy, Antonin Scalia, and Clarence Thomas to reject the FEC's censorship of Hillary: The Movie, declared, "We don't trust our First Amendment rights to FEC bureaucrats." Meanwhile, Samuel Alito, who could provide the fifth vote against BCRA's speech restrictions, noted that most states allow unlimited corporate spending on political speech. "Have they all been overwhelmed by corruption?" he asked Solicitor General Elena Kagan. (They haven't.)
The New York Times reports that Kagan was backpedaling as fast as she could. She repudiated Deputy Solicitor General Malcolm Stewart's claim last March that the Constitution allows Congress to ban books published by corporations, and she allowed that maybe advocacy organizations like Citizens United should not be covered by the electioneering communications ban. Supporters of "campaign finance reform" have long argued that nonprofits must be covered because otherwise business interests can use them as conduits for their views.
Politico says Chief Justice Roberts highlighted the government's shifting rationales for the corporate speech restrictions. When the Court upheld BCRA's restrictions in 2003, it relied on the rationale endorsed by its 1990 ruling in Austin v. Michigan Chamber of Congress: the need to control the "corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form." But in its supplemental briefs (filed after the Court ordered a second round of arguments to address the continued viability of Austin), the government instead emphasized the need to prevent the appearance of corruption and the need to protect shareholders from supporting speech with which they disagree. Today Roberts told Kagan she was asking the Court to uphold limits on corporate speech "on the basis of...two compelling interests we've never recognized in this context." According to Politico, Roberts "dismissed the shareholder protection argument as an 'extraordinarily paternalistic' example of the government playing 'Big Brother,' while saying of the corruption argument, 'I just don't think it holds up.'"
Institute for Justice attorney Steve Simpson, whose organization sided with Citizens United against the FEC, concludes: "Based on today's argument, free speech advocates can be optimistic for a broad vindication of First Amendment rights. Several justices recognized that a piecemeal approach to free speech is insufficient to protect vital constitutional rights."