Justice Stevens and the NRA: Unlikely Allies in Campaign Finance Case?

During last week'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 Washington, 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.

http://www.law.com/jsp/article.jsp?id=1202433751210&Justice_Stevens_and_the_NRA_Unlikely_Allies_in_Campaign_Finance_Case


Selected portions referred to above:

JUSTICE STEVENS: No, but to answer my question, the line suggested by the NRA is the line identified by Congress in the Snowe-Jeffords amendment dealing with individual financing of speech which would separate all of these problems. What is your comment on that possible solution to the problem? ...

JUSTICE STEVENS: Before you go to your second point, may I ask you to clarify one part of the first, namely, your answer to the question I proposed to Mr. Olson, namely, why isn't the Snowe-Jeffords Amendment, which was picked on by Congress itself, an --and which is argued by the NRA, an appropriate answer to this case? ...

JUSTICE STEVENS: Does that mean you disagree with the NRA's submission?

MR. OLSON: I -- I submit that it does not solve the problem. It would lead exactly --

JUSTICE STEVENS: If it solved the problem as it would for the advertising, would it be an appropriate solution?

MR. OLSON: It -- I can't say that it -- if it solved the problem, because it doesn't solve the problem of prohibiting all corporate speech. And I think -- and I am submitting, Justice Stevens, that that is unconstitutional...

JUSTICE STEVENS: You do not endorse the NRA's position?

MR. OLSON: No, we don't Justice Stevens, and -- and, as I said, it would not exempt my clients. The other -- the third way in which the government has changed its position is its rationale for this prohibition in the first place. Is it corruption? Is it shareholder protection? Is it equalization? ...

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-205%5BReargued%5D.pdf