Conservative Libertarian Outpost

During Wednesday’s extraordinary Supreme Court oral argument in Citizens United v. Federal Election Commission, some of the more remarkable moments came when Justice John Paul Stevens repeatedly referred, with approval, to a brief filed in the case by the National Rifle Association. Not a pairing you might expect, but Stevens saw in the brief a possible way to rule on the case narrowly, without totally upending major Court precedents on corporate and union spending in election campaigns.

The NRA brief, authored by Charles Cooper of Cooper & Kirk in D.C., joined the opponents of spending restrictions by agreeing with Citizens United that the precedents, Austin v. Michigan Chamber of Commerce and a section of McConnell v. FEC, should be overturned. But Cooper also suggested a more limited alternative that caught Stevens’ eye: reversing those precedents only to the extent that they permit the government to restrict campaign spending by non-profit advocacy groups — like the NRA, he said — that use individual donations to fund political speech. That would have the effect of striking down the so-called Wellstone Amendment in the McCain-Feingold law, which included such non-profit groups in the ban on campaign spending. Cooper says the amendment was specifically aimed at keeping the NRA from using its treasury funds in campaigns, and sticks out like an “unconstitutional sore thumb.” By excising the Wellstone Amendment from the law, Cooper said, the Court would strike a blow for the First Amendment and allow “non-profit groups like the NRA, the Sierra Club, and the ACLU, to speak to their hearts’ content” during campaigns.

“I’m delighted that the points we made got Justice Stevens’ attention, or any other members of the Court,” said Cooper. Asked in jest if the NRA would welcome the liberal Stevens as a member, Cooper laughed and said, “With open arms, I am sure.”

Stevens first cited the NRA solution just as Citizens United’s lawyer Theodore Olson of Gibson, Dunn & Crutcher was ending his time at the podium. “No one has commented” on the NRA brief, Stevens said, but he was bringing it up in response to Justice Sonia Sotomayor’s suggestion earlier that “there are narrow ways of resolving the problem before us.” Stevens asked Olson if he would comment on the brief during his rebuttal, and after some back and forth, Olson said he would do so.

Next, Stevens raised the NRA brief in a question to Olson’s adversary Solicitor General Elena Kagan. In response, she allowed that Citizens United is “an atypical plaintiff” as an ideological non-profit corporation, but the discussion took another turn before she fully answered Stevens’ question. Stevens came back to it again, and ultimately Kagan acknowledged that striking down the Wellstone Amendment would be “certainly a narrower and I think better solution” than invalidating the entire statute that pertains to corporate and union spending.

When Olson rose again for his rebuttal, Stevens soon asked him again about the NRA brief. Earlier in the case Olson had shifted the case into high gear by explicitly asking the Court to overturn the Austin and McConnell precedents. The oral argument to that point had clearly put that goal within reach, so Olson was not, it appeared, settling for a half- or quarter-loaf.

“It would not solve the problem,” said Olson, adding that even without the Wellstone Amendment his client might still be covered by the law. To nail down the point, Stevens persisted: “You do not endorse the NRA’s position?” To which Olson replied, “No we don’t.”

In an interview Cooper stressed that his preference, like Olson’s, would be to overturn Austin and McConnell broadly. “That’s an argument we have made robustly,” Cooper said. But the narrower solution, he said, would serve his client’s interest, as well as that of other non-profit advocacy groups, without disturbing the restrictions on the main target of campaign legislation: business corporations. “With a group like ours, our purpose is advocacy,” said Cooper. “It’s not the cash register, it’s the ballot box.” The First Amendment, he said, should not stifle such speech.

Footnote: Cooper did not attend the argument Wednesday. He was in California at the time, working with his clients, supporters of Proposition 8 which overturned a California Supreme Court ruling that would have allowed same-sex marriage. One of his adversaries in the litigation over the proposition: Ted Olson.

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