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PaperclipPerfector  6d ago (text post)   21283 thread views

Culture War Roundup for the week of October 20, 2025

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In 2010, the Supreme Court ruled in Citizens United that there are essentially no constitutional limits on political spending and advertising. At the time, it was widely anticipated that this would turn American politics into the wild west of corruption, crony capitalism, and corporate propaganda.

Is there someone interested in a steelman of ruling Citizens United in the opposite direction? The initial oral argument featured a claim that federal election law gave the government the authority to literally ban books. A redux argument in that case rather memorably featured Solicitor General Kagan (now a SCOTUS Justice) had the following dialog (PDF warning):

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. It does --

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.

I personally don't find the government's argument here persuasive, especially in light of why Fahrenheit 9/11 (a documentary very critical of the Bush administration released during the 2004 election cycle), clearly a corporate work, was deemed acceptable by the FEC, but Hillary: The Movie was somehow not. I'd love to hear a steelman of the FEC's choices there, because I find it really unpersuasive. Maybe there's something on the "corporate" angle there, but I have trouble with the idea that such an important constitutional right disappears as soon as you band together. And if you go that route, it seems like you're limiting rights only to the monied class: it prevents crowdfunding to fly a branded blimp, but wouldn't preclude, say, Elon Musk deciding to fund that same blimp by himself. If you think "paying other people" for that blimp comes into play, I hope you don't need to pay someone else to put up billboards. It's just turtles all the way down, even if I'm not completely happy with the final decision.

ETA: I'm not even convinced that current Justice Kagan would side with General Kagan of the time here.

Is there someone interested in a steelman of ruling Citizens United in the opposite direction?

The steelman, I think, is simply that Citizens United didn't change nearly as much as people suggest it did.

And if you go that route, it seems like you're limiting rights only to the monied class: it prevents crowdfunding to fly a branded blimp, but wouldn't preclude, say, Elon Musk deciding to fund that same blimp by himself.

This is in fact a feature of US election law -- a candidate can spend as much as his own money as he likes.

I've long had an idea bouncing around my head of creating a Citizens United quiz full of all kinds of tough questions to try and get people to realize the full implications of what they're asking for when they want it overturned. Some if the questions I've thought of:

Current politician John Smith recently wrote memoirs. Knopf projects that the memoirs will likely be unprofitable to publish, but they think it will help John Smith's reelection chances if they publish it anyway and eat the loss. Is it campaign spending if they choose to publish it? Should they be required to do a profitability analysis before publishing any books about active politicians? I have several variations in mind, like if John Smith is now a retired politician, or he's dead but a current candidate is seen as the bearer of his legacy, or if the book is projected to actually be profitable, or if it's a tell-all by his daughter about he molested her, etc.

Arnold Schwarzenegger is running for governor of California. AMC owns the syndication rights to several of his movies, do they have to stop airing his films within a certain number of days before the election? My favorite variations: If AMC decides to start showingTerminator 2 and Total Recall twice as much as they had before, is that campaign spending in Arnold's favor? If they decide to start showing nothing but Junior and End of Days is that campaign spending against him?

Arnold Schwarzenegger is running for governor of California. AMC owns the syndication rights to several of his movies, do they have to stop airing his films within a certain number of days before the election?

George Takei ran for LA city council in 1973, and the local TV stations did take reruns of Star Trek and new-run episodes of ST:TAS off the air apparently because of this.

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