"Tonight for the interview ..." -- or The Interview as this species of schmooze is known on The Rachel Maddow Show -- "we've got a sitting Supreme Court justice," trumpeted Maddow on her program Friday night. "What?! Yes! ... It is very rare for Justice Breyer to do an interview but we have got that here tonight."
Halfway through the show, Maddow made another plug for The Interview -- "There are nine justices on the Supreme Court. Contrary to popular impression, the nine life-tenured members of the United States Supreme Court -- they are human. They are people. That said, that doesn't mean you can talk to them. Except tonight we can. Tonight an interview with sitting Supreme Court justice Stephen Breyer. Seriously."
And yet, and yet, when it actually came time for The Interview, Breyer wasted little time deflating the balloon that Maddow hyperventilated to inflate. How so? By dodging a question from MSNBC legal correspondent Ari Melber about a pathological fixation on the left, right alongside their unholy devotion to abortion on demand -- the Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission --
MELBER: Let me ask you about another big issue, Citizens United, a case where the dissent that you joined said this will cripple the ability of ordinary citizens, Congress and the states to adopt even limited measures to protect against corporate domination of the electoral process.
BREYER (shaking his head): But I don't want to, I mean, that's a very important issue, I was in the dissent in that case, it's complicated and takes a long, a significant amount of time to explain and so I would rather not explain it on television because it is so controversial and I'd like to go on to some other thing, not that I don't have views on it ...
MELBER: All right ...
BREYER: ... they're in writing and I've joined opinions and so forth. That's too controversial and too complex a matter for me to discuss in this forum.
MELBER: Let me ask you then a theoretical question.
Back to Maddow, exuding forced glee and doing her part to buffer the shine on this sneaker --
MADDOW: Yes! Yes, change tack, go back at it a different way. That was amazing.
Yes, amazing and disappointing -- and we've got the exclusive here on MSNBC! By the way, isn't it more than a tad misleading for a caption during The Interview to label the segment "Live MSNBC" when it was recorded before the show?
One thing Breyer's lame punt wasn't -- all that surprising. While liberals are unified in their visceral disdain for the Citizens United ruling, they are loathe to discuss its specifics. Once they do, their argument is lost.
Contrary to Breyer's claim, the case is no more complicated than this -- during the 2008 campaign, a conservative research and advocacy group known as Citizens United sought to broadcast a documentary critical of Hillary Clinton, titled "Hillary: The Movie," over pay-per-view cable shortly before the New Hampshire primary.
The organization was kept from doing so by the byzantine provisions of the 2002 Bipartisan Campaign Reform Act, better known as McCain-Feingold, which prohibited corporate and union funding of "electioneering communications" (translation: political ads) that cited a specific candidate within 30 days of a primary and 60 days of an election. Violating the law was a felony punishable by up to five years in prison.
Angered that its First Amendment rights were so obviously violated, Citizens United filed suit and the case made its way to the Supreme Court. Oral arguments were heard in March 2009 and they are well worth hearing again, if only for this remarkable exchange between three justices and Deputy Solicitor General Malcolm L. Stewart, the latter arguing against Citizens United's challenge (audio of mixed quality, recorded from ITT Chicago-Kent College of Law archive, the exchange below starting at 29:03) --
JUSTICE SAMUEL ALITO: Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth? What's your answer to Mr. (Ted) Olson's (lawyer for Citizens United) point that there isn't any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book. Would the Constitution permit the restriction on all of those as well?
STEWART: I think the, the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that there were otherwise constitutional under Wisconsin Right to Life. Those could have been applied to additional media as well. (emphasis added and throughout). And it's worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering which have been limited by this court's decisions to express advocacy ...
ALITO: That's pretty incredible. You think that if, if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?
STEWART: I'm not saying it could be banned. I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.
ALITO: Well, most publishers are corporations. And a, a publisher that is a corporation could be prohibited from selling a book?
STEWART: Well, of course, the statute contains its own media exemption or media ...
ALITO: I'm not asking what the statute says. The government's position is that the First Amendment allows the banning of a book if it's published by a corporation?
STEWART: ... because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right. That question is obviously not presented here. The, the other two things ...
JUSTICE ANTHONY KENNEDY: Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/90 day period (Kennedy correcting himself), the 60/30 day period?
STEWART: If the book contained the functional equivalent of express advocacy. (Shorter answer -- yes). That is, if it was subject to no reasonable interpretation ...
KENNEDY: And I suppose it could even, is it the Kindle where you can read a book? I take it that's from a satellite. So the existing statute would probably prohibit that under your view.
STEWART: Well, the statute applies to cable, satellite and broadcast communications. And the court in McConnell (v. FEC) has addressed the ...
KENNEDY: Just to make it clear, it's the government's position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30 day period, if it comes from a satellite, it's under, it can be prohibited under the Constitution and perhaps under this statute?
STEWART: It, it can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use, to raise funds to publish the book using its PAC.
JUSTICE JOHN ROBERTS: If it has one name, one use of the candidate's name, it would be covered, correct?STEWART: That's correct.
ROBERTS: If it's a 500-page book and at the end it says, and so vote for X, the government could ban that?
STEWART: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provisions.ROBERTS: No, I'm talking about under the Constitution, what we've been discussing, if it's a book.
STEWART: If it's a book and it is produced, again, to leave, to leave to one side the question of ...
ROBERTS: Right, right, forget the ...
STEWART: ... the possible media exemption, if you had Citizens United or General Motors using general treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this ...
ROBERTS: No, take my hypothetical. It doesn't say at the outset. If funds, here is, whatever it is, this is a discussion of the American political system and at the end it says vote for X.
STEWART: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.
ROBERTS: And if they didn't, you could ban it?
STEWART: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.
You heard it right, folks -- under the law as it existed before Citizens United, the government could ban not only documentaries in the weeks before voters go to the polls-- in other words, when voters are most attentive -- but books as well. No wonder Breyer was so reluctant to wade through the weeds on this one, even from the safe confines of MSNBC.
In a May 2010 article for The American Spectator, Bradley A. Smith eloquently described the significance of the Citizens United ruling --
Americans are willing to accept far more abridgements of free speech than we sometimes like to believe, but the idea of banning books strikes an emotional chord that something described simply as "prohibitions and limits on campaign funding" does not. Americans may not always live up to the Bill of Rights, but Americans do not ban books. ...
After four decades in which the court had given greater First Amendment protection to such activities as topless dancing, simulated child pornography, Internet porn, flag burning, and the transfer of stolen information than to political speech, Citizens United is a wonderful affirmation of the primacy of political speech in First Amendment jurisprudence.
The ruling was supposed to usher in an era of corporate dominance of our politics, at least according to liberals rendered overwrought in its wake. What happened instead? Barack Obama was re-elected in 2012 against a Republican who epitomized corporate America. Groups run by GOP strategist Karl Rove raised $175 million for Republican candidates -- who lost 21 of 30 races. After the 2012 election, left-wing birdcage liner Mother Jones sniffed that the ruling "turned out to be a fizzle."
More recently, Wisconsin governor Scott Walker dropped out of the GOP race despite having the billionaire Koch brothers in his corner. Jeb Bush has raised much more money than most of his Republican opponents, yet languishes way back in the polls.
All of which helps explain Breyer's reticence on a subject of obsessive and disproportionate interest to his fellow liberals. They'd rather keep condemning the ruling in broad strokes instead of looking too closely at its details.
