Recently the Supreme Court heard oral arguments in Citizens United v. Federal Election Commission, the latest in a series of challenges to the application of the McCain-Feingold Bipartisan Campaign Finance Reform Act (or, as I've taken to calling it, Johnny McCain's Magical Muzzle). Not surprisingly, the Solicitor General for the new administration argued in favor of the lower court's ruling that Citizens United could be prevented from showing their film, Hillary: The Movie, on an On Demand service shortly before the Democratic primaries.

What is surprising (or not) is the statements made by the Solicitor General in these arguments in response to questions from the bench. On page 27 of the oral arguments transcript, Justice Alito engages Malcolm Stewart (the Solicitor General) in an exchange where Stewart makes some pretty bold statements regarding the administration's view of its authority under BCRA:
JUSTICE 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?

MR. 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 --
At this point Justice Alito interjects with another question, but given the rest of his arguments, we can safely assume Stewart was going to finish with "political action committee." On the next page, Justice Kenndy engages Stewart in another question:
JUSTICE 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 -- the 60 -- the 30-day period?

MR. STEWART: If the book contained the functional equivalent of express advocacy.
I sure hope I'm not the only one alarmed by this assertion of power. I've always been against BCRA not only on first amendment grounds, but also because it's at least arguable that the power granted to Congress by the Constitution to regulate federal elections does not extend to regulating the campaigns that precede them. And now the federal government is asserting that it has the power to ban books under this law, provided that they aren't paid for in a certain manner.

If that doesn't sound too onerous, the manner in which such books must be funded should be given a second glance. Federal election law is probably about as complex as the federal tax code, so I resorted to the Wikipedia entry on [ame=http://en.wikipedia.org/wiki/Political_action_committee]political action committees[/ame] to see if it explains how they must be funded. Indeed, it does. According to Wikipedia (an important caveat, to be sure) a PAC must be funded by donations from individuals, and any individual cannot donate more than five thousand dollars per year. Corporations are not allowed to donate to PACs. This means a publisher is prohibited from printing and distributing a book that it pays for itself if the book is deemed to be an "electioneering communication." According to Stewart (page 29):
CHIEF JUSTICE ROBERTS: If it has one name, one use of the candidate's name, it would be covered, correct?

MR. STEWART: That's correct.
Although the law explicitly exempts newspapers from funding requirements, I can't imagine why they should be treated any different from any other publisher which puts words to paper. If corporations can be prohibited from publishing "electioneering communications" under BCRA and it does not run afoul of the Constitution, I fail to see why that provision which exempts newspapers from the funding requirements cannot be removed at some future date with no problems at all.

Book banning, and the theoretical muzzling of the press: this is "Hope and Change"?