June 30, 2009

Citizens United: Did the Court Ask for Briefing to Cure an Incurable Defect?

As I noted, the parties in this case have been asked to address the question: "should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. s441b...?" (my emphasis)

It is an odd formulation, but the reason for the formulation may have to do with the issue I've alluded to yesterday, whether the question of overruling either case is properly before the Court. From my review below, it appears that neither of these questions is properly before the Court.

This may shed more light on why the case was reset for argument in September. Perhaps the five conservatives circulated a draft overruling either Austin, McConnell or both, and the would-be dissenters made the argument that the question was not properly before the Court. If that's true, it would make overruling these cases even more audacious, leading to charges of conservative "judicial activism."

If this theory is right, the full briefing ordered by the Court may have been ordered with the intent to provide some cover for the overreaching. Supplement briefing will give the parties a chance to fully brief the argument now. Nonetheless---and tellingly the Court did not ask for supplemental briefing on the question whether the issue of overruling McConnell and Austin is properly before the Court-- supplemental briefing cannot cure this defect: if an issue was not raised below or fairly presented in the jurisdictional statement, the Court should not decide it. I expect that his argument will surely figure prominently in any dissent from a majority opinion overruling Austin, McConnell, or both.

It is hard to imagine any other reason why the Court ordered this supplemental briefing now, rather than decide the case (and, contrary to Mickey, I think if CJ Roberts and Justice Alito just wanted to expand the MCFL exemption, they likely could have gotten some liberal votes for that, and would not have needed to set the case for briefing on a nuclear-type issue).

The rest of this post provides the details on why these questions are not properly before the Court. When the case began, a three-judge court denied Citizens United's request for a preliminary injunction barring FEC enforcement of section 203. 530 F.Supp.3d 274 (D.D.C. 2008). On Citizens United's facial challenge to the law, the court construed it as an attack on McConnell and held that it was without power to overrule McConnell, as it was bound by Supreme Court precedent. The initial opinion makes no mention of an attack on Austin. Citizens United appealed the denial of the preliminary injunction to the Supreme Court, which dismissed the appeal. 128 S.Ct. 1732. The three-judge court then granted summary judgment for the FEC, in a single paragraph opinion concluding: "Based on the reasoning of our prior opinion, we find that the Federal Election Commission is entitled to judgment as a matter of law." 2008 WL 2788753 (D.D.C. July 18, 2008). The Supreme Court agreed to hear an appeal of the summary judgment decision, 129 S.Ct. 594 (2008).

After the case got to the Supreme Court, CU changed lawyers (from Jim Bopp to Ted Olson) and changed strategy, mounting an attack on Austin. It comes in an odd way, as part of what it styles an "as applied" challenge to McConnell. It notes that McConnell is an "apparent extension" of Austin and then offers reasons for Austin to be overruled (see around pages 30-31).

The government's brief gives this argument the back of its hand. The government begins by noting that that: "Acceptance of appellant's argument [to overrule Austin] would effectively invalidate not only BCRA Section 203, but also 2 U.S.C. 441b's prohibition on the use of corporate treasury funds for express advocacy, as well as any state-law analogues. Notably, appellant does not ask this Court to reconsider McConnell''s holding that, if corporate spending on express advocacy in candidate elections may be regulated, so may corporate spending that is the functional equivalent of express advocacy. Cf. WRTL, 127 S. Ct. at 2686 (Scalia, J., concurring in part and concurring in the judgment) (advocating, as "modest medicine," the overruling of only McConnell's comparatively recent holding as to nonexpress advocacy). Rather, appellant seeks to invalidate both forms of regulation."

The government then states:

    Appellant's argument is not properly before the Court. Although appellant previously sought to have BC RA Section 203 declared facially unconstitutional, see J.A. 24a, it later abandoned that claim, and the district court ultimately ordered dismissal of the relevant count pursuant to the parties' stipulation. See p. 10, supra. In addition, appellant's jurisdictional statement presented only "an as-applied challenge to *** BCRA s 203." J.S. 5. In setting out the substantial federal questionsb that it believed warranted plenary review, appellant identified a dispute over the application of WRTL and a question about whether Section 203 can be applied to a "feature-length documentary movie." J.S. i, 24-28. No issue as to the continuing vitality of Austin was either "set out" in the questions presented or "fairly included therein." Sup. Ct. R. 14.1(a) (rule for certiorari petitions), 18.3 (applying Rule 14 to jurisdictional statements).

    In any event, this case presents none of the considerations that might support a departure from this Court's customary fidelity to precedent. Austin has been relied on by the other branches of the federal government, especially in crafting BCRA; by this Court, which applied Austin in upholding that statute, see McConnell, 540 U.S. at 203, 205 (explaining that none of the plaintiffs in that case, which included appellant, challenged the correctness of Austin's holding); and by legislatures and courts considering state and local campaign-finance measures. In short, "Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law." McConnell, 540 U.S. at 203.
    Appellant makes virtually no effort to explain why Austin should be overruled under "the doctrine of stare decisis or the Court's cases elaborating on the circumstances in which it is appropriate to reconsider a prior constitutional decision." Randall v. Sorrell, 548 U.S. 230, 263 (2006) (Alito, J., concurring in part and concurring in the judgment). Appellant devotes less than two pages of its 58-page brief (Br. 30-31) to this issue, and it identifies no relevant new evidence or other intervening development that was unavailable to the Court when Austin was decided. That "incomplete presentation" is "reason enough to refuse" appellant's extraordinary request to overrule Austin, and as a consequence the relevant holding of McConnell as well. Randall, 548 U.S. at 263 (Alito, J., concurring in part and concurring in the judgment).

    In arguing that Austin was "wrongly decided" (Br. 30), appellant relies in part on this Court's subsequent decision in Davis v. FEC, 128 S. Ct. 2759 (2008). That ruling, however, invalidated statutory conditions placed on a wealthy individual's expenditure of personal funds in support of his own candidacy. See id. at 2766-2767, 2770-2774. The case therefore did not implicate this Court's consistent "respect for the 'legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.'" McConnell, 540 U.S. at 205 (quoting National Right to Work Comm., 459 U.S. at 209-210). Indeed, neither the Court nor the dissenters in Davis suggested that there was any inconsistency between that decision and the prior ruling in Austin.

    Appellant also relies (Br. 30) on Bellotti, which was decided 12 years before Austin. But the Court in Bellotti, while invalidating state-law restrictions on the use of corporate funds to influence ballot-question referenda, explained that its "consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office." 435 U.S. at 788 n.26. The Court further observed that "Congress might well be able to demonstrate the existence of a danger or apparent corruption in independent expenditures by corporations to influence candidate elections." Ibid. Far from providing a basis for overruling Austin, the decision in Bellotti anticipated the rationale on which, the Austin Court later relied.

UPDATE: More on this topic here.

Posted by Rick Hasen at June 30, 2009 09:27 PM