Dorsen and Neuborne file amicus brief in Supreme Court campaign finance case

The Supreme Court today took up its first oral argument with new Associate Justice Sonia Sotomayor on the bench in Citizens United v. Federal Election Commission. The Court first heard oral arguments in the case in March but later ordered both sides to return to specifically reargue whether previous rulings upholding campaign finance regulations should be overturned.

In the case at issue, conservative group Citizens United produced Hillary, a movie critical of Secretary of State Hillary Rodham Clinton, when she was seeking the Democratic nomination for president. Under current federal law, the showing of the movie on television could have exposed the group to criminal penalties because Citizens United is partly financed by corporate grants, and because the movie was shown close to the Democratic primaries.

In an amicus brief arguing in support of the constitutionality of the ban on corporate expenditures in campaigns, Norman Dorsen, Frederick I. and Grace Stokes Professor of Law and co-director of the Arthur Garfield Hays Civil Liberties Program, and Burt Neuborne, Inez Milholland Professor of Civil Liberties and legal director of the Brennan Center for Justice, argued on behalf of former officials of the American Civil Liberties Union that the film does not fall within the statutory ambit of the Bipartisan Campaign Reform Act of 2002 (BCRA), also known as the McCain-Feingold Act. The Act in part addresses the proliferation of issue advocacy ads, by defining as "electioneering communications" broadcast ads that name a federal candidate within 30 days of a primary or caucus or 60 days of a general election, and prohibits any such ad paid for by a corporation, including non-profit issue organizations, or paid for by an unincorporated entity using any corporate or union funds.

Dorsen, counsel of record on the brief, served as ACLU general counsel from 1969 to 1976 and as president from 1976 to 1991. Neuborne was the ACLU's assistant national legal director from 1972 to 1974 and national legal director from 1982 to 1986.

According to the brief, there are six impediments to statutory coverage: 1) Hillary was produced and distributed by Citizens United, a nonprofit corporation analogous to the exempt nonprofit corporation in Federal Election Commission v. Massachusetts Citizens for Life, an earlier Supreme Court case; 2) less than one percent of the funding for Hillary is said to be derived from private individuals; 3) there is no record evidence that for-profit corporate donors played any role in producing or editing the material; 4) there is no record evidence concerning whether Citizens United solicits funds from for-profit corporations; 5) the video-on-demand distribution mechanism employed by Citizens United required potential viewers to affirmatively access the material; and 6) given the volitional distribution system, the material was not reasonably likely to be viewed by more than 50,000 people eligible to vote in the relevant Democratic presidential primary, as required by the statute.

In the expanded 80-minute hearing, Solicitor General Elena Kagan argued her first case before the Court; former Solicitor General Seth Waxman argued for Senator John McCain and other members of Congress; noted First Amendment attorney Floyd Abrams represented Senator Mitch McConnell, who opposes the ban; and former Solicitor General Ted Olson spoke for Citizens United.

Posted on September 9, 2009