The argument in Citizens United today may barely have grazed the Justices' thinking, changing no minds. Who knows? This is true, most likely, of most arguments.  But if the Court does eventually strike hard at the statute, with this case as an excuse, the argument will be remembered.  For it was clear that the government's position, tested for its limits or their absence,  caused discomfort--even for the likes of Stephen Breyer.

   Rick Hasen claims that this could have been avoided by deflection of certain questions.  This is doubtful. The Justices who asked a straight question expected a straight answer: it is strange indeed to imagine that the argument could have been won by declining to explain the reach of Congress' constitutional authority to prohibit certain publications.  Once the answers came, they were sure to expose the difficulties presented all along by applying the statutory prohibitions to film-making or book publishing.

   Does it matter, in deciding the constitutional issue, that this was a 90 minute documentary and not a 30 second ad?  The government said : no. Would it matter if this were a book and not a film, assuming Congress had chosen to regulate all forms of publication? The government said: no.  Did it matter if the speech were heard only by those who affirmatively arranged to heard it?  The government said: no.  Express advocacy, or its functional equivalent, was just that, and corporations and unions could not pay for it. And, of course, the prohibition here applies equally to General Electric or to the smallest of ideologically founded nonprofit corporations.

   Hasen has suggested that there is a path here toward "constitutional avoidance".  The Court could find that the statute did not apply to "video-on-demand" access to this movie, relying on the fact that viewers choose to order the film for personal home viewing, much as they can watch in in DVD format or in a theater. But the act of avoidance counseled by Rick is fairly dramatic. For the government made clear that even if the statute were construed narrowly in this way, the documentary would be illegal--if one assumes, as one should on the facts, that it was the functional equivalent of express advocacy. (And if the Court were to conclude that this was not electoral advocacy, this would unleash a whole different set of problems).

   This was the reason why the Justices' question about other publications, books in particular, were entirely reasonable. Had the Government agreed that books would be protected, beyond regulation--and this would have been no easy feat--then the case would have been returned to the four corners of the "electioneering communications" provision.  The issue would have been the reach of only that part of the law, and if the Court had determined that "video-on-demand" was not a broadcast communication, the case could indeed have been closed.  But it would not have helped Citizens United, which remains at risk under the government's theory--a theory rejecting any saving distinction between books and films. 

   And even the narrower holding is less than satisfactory, since it is not clear on what basis "video on demand" is excluded from coverage as an "electioneering communication".  One can see the argument, more by feel than by logic.  It is fair to say that it seems much like DVD or theatre viewing.  It is neither the one nor the other, however, and when the argumen this morning surfaced the question of how Kindles would be treated, the absence of clear grounds for removing  these types of transmissions from statutory coverage became painfully obvious. The law might have been written around material distinctions--distinguishing shorter campaign-type ads from other, longer form communications--but it was not written that way. In short, the trick of interpretation here could not be pulled off cleanly.

   It is hard to see, in short, that the Court has been given much room to avoid a constitutional issue.  The answers the government gave at argument were the only answers, on the law as it now stands, that it could safely give.  Stated compactly, the government's position was aggressive, and this aggressiveness was obviously alarming to the Court.

   To decide the case "narrowly" would mean that the government would go unanswered on the fairly momentous question of how political books and films can be paid for. The Court may well hesitate before stepping entirely out of the way of that question.

Bob Bauer