Court watchers typically don’t call Chief Justice Roberts the Court’s “swing vote,” but the success of Citizens United’s challenge to the corporate political-speech ban could hinge on him. Justices Kennedy, Scalia, and Thomas have long favored an overhaul of current political speech regulation under “McCain-Feingold” and the case law emanating from Austin v. Michigan Chamber of Commerce. Justice Alito has also been skeptical of the current law’s ability to prevent constitutionally protected speech from regulation. Though Roberts shares their interest in limiting the scope of regulation, his 2007 opinion in FEC v. Wisconsin Right to Life demonstrated his preference to do so within the Court’s precedent. It would be surprising if Chief Justice Roberts would overturn a line of case law that includes a precedent he articulated just two years ago. By appealing to the purpose behind Robert’s “safe harbor” test from Wisconsin, the Court’s conservatives could bring the Chief Justice on board to vindicate Citizens United.
Roberts distinguished Wisconsin from previous cases by narrowing the corporate ban only to ads that “expressly advocated” for the election or defeat of a candidate — issue ads received a “safe harbor” from government regulation. Roberts’s test garnered the votes of the other conservatives, but not without their skepticism of a workable distinction between ads about issues and ads advocating or opposing a candidate. The FEC’s use of the test since Wisconsin has likely validated the concerns expressed by the conservatives. Any ad that mentions a party or candidate is currently a form of “expressed advocacy,” regardless if the ad specifically advocates how to vote, giving what could be an issue ad no “safe harbor” from regulation.
The Chief Justice saw the extent of the FEC’s manipulation of his “safe harbor” test in the first round of oral arguments, which perhaps underlies why the Court is rehearing the case. If Chief Justice Roberts is looking to refine his “safe harbor” test to prevent excess regulation, Justice Scalia’s comment that speech “not only offered but welcomed by the listener is entitled to heightened First Amendment scrutiny” could provide a “safe harbor” for Citizens United’s “on demand” movie from the usual TV ad regulation. This outcome would certainly bring campaign-finance regulation closer to the Constitution, even if it doesn’t bring it the whole way. Most importantly, it will attract a fifth vote in Chief Justice Roberts.
— Will Haun is policy chairman of the Young Conservative Coalition and in his first year at the Catholic University of America’s Columbus School of Law.