March 01, 2009

Citizens United: Constitutional Avoidance as a Way Out?

I've read through the briefs in the Citizens United case, which will be argued later this month before the Supreme Court. I'm preparing a preview of the case for the ABA Supreme Court Preview, and I'll be posting a copy of the preview at this blog when it is ready. In the meantime, I wanted to flag an interesting legislation issue in the case.

Here's some very brief background on the case, with more to come later. An ideological corporation, Citizens United, which takes for-profit corporate funds, produced an anti-Hillary Clinton documentary. It wanted to air it during the presidential primary season through a cable television "video-on-demand" service and to advertise for it on television. In exchange for a $1.2 million fee, a cable television operator consortium would have made the documentary available to be downloaded by cable subscribers for free "on demand" as part of an "Election '08" series. BCRA (McCain-Feingold) bars certain corporate-funded television broadcasts, such as this documentary, in the period before the election and requires disclosure by the funders of election-related broadcast advertising, such as these ads.

Under one of BCRA's "electioneering communications" provisions, a corporation or union cannot pay with treasury funds (though it can use a PAC) for a broadcast that features a candidate for federal office, is broadcast to be able to reach at least 50,000 people in the relevant electorate, and is shown within 30 days of a primary or 60 days of a general election. Citizens United argues that it is unconstitutional to ban its corporate-funded documentary. It raises a number of arguments, including the provocative argument that the Court should overrule Austin v. Michigan Chamber of Commerce, and allow all corporate-funded election-related advertising in federal candidate elections. That's a pretty tall order. Though three Justices (Kennedy, Scalia, and Thomas) have voted repeatedly for Austin to be overruled, Chief Justice Roberts and Justice Alito thus far have moved more cautiously in the campaign finance cases. In each of the campaign finance cases decided by the Roberts Court, the Court has sided with those challenging the law, but has done so in an incremental way. In this case, the question of overruling Austin was not presented in the lower court and did not appear in the Supreme Court until the merits stage, when Ted Olson took over for Jim Bopp.

So if Chief Justice Roberts and Justice Alito want to side with Citizens United, but they don't want to take the dramatic step of overruling Austin (at least not yet), there's a statutory/regulatory path to do so. The FEC has construed BCRA in its own regulations to apply to "video-on-demand" cable broadcasts. In footnote 2 of Citizen's United's brief on the merits, Citizens United suggests that the Court construe the statutes and regulations so as not to cover "video-on-demand." The technology certainly is different from the usual way that cable television works: to see Hillary: The Movie, someone would have to be doing more than channel surfing or inadvertently seeing a campaign ad while watching The Office. Someone has to affirmatively select the video to download and watch, which is not all that different from watching it on the Internet (unregulated) or ordering and watching the DVD (unregulated). Citizens United also makes much of the means of delivery, and how a single signal from the cable company to a viewer's cable box will be seen by a handful of people, and not the 50,000 persons mentioned in BCRA's electioneering communications provisions.

In support of the statutory argument, Citizens United raises the canon of "constitutional avoidance." Roughly speaking, if a statute has two reasonable interpretations, construe it in a way that avoids creating constitutional problems. What is interesting here is that Citizens United gets an assist on this point from BCRA's sponsors, Senators McCain and Feingold, and Representatives Shays and Meehan, whose amicus brief argues against Citizens United's positions, but argues as a backup for the statutory solution. The sponsors obviously would prefer a narrow statutory holding on "video-on-demand" rather than a constitutional holding in favor of Citizens United.

The statutory/regulatory argument may provide just the narrow way out that Chief Justice Roberts and Justice Alito could be looking for. There's just one problem with it. It was not raised by Citizens United in the Court below, a point that Citizens United's brief forthrightly admits. The reason for this is probably a difference in strategy between Citizens United's former lawyer, Jim Bopp, and his current lawyer, Ted Olson. Bopp wants the court to reach the constitutional issues as a way of undermining the edifice of BCRA. Olson apparently wants to secure a win, whether it breaks new constitutional ground of not. (Along similar lines, Bopp expressly took the MCFL issue out of the case in the district court by stating that its group took for-profit corporate money. But now Olson is trying to argue that Citizens United should be entitled to an MCFL exemption. Jim Bopp's strategy at the time appeared to be to expand WRTL II for all corporations, not to expand the scope of the MCFL exemption.) So Olson now may be hoping that the principle of constitutional avoidance can get the Chief and Justice Alito over the fact that the statutory/regulatory issue about "video-on-demand" was not raised in the district court.

UPDATE: Bob Bauer comments.

Posted by Rick Hasen at March 1, 2009 08:55 PM