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.
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