July 27, 2009
The Government's Remarkable Supplemental Brief in Citizens United: No Mention of Corporate "Distortion"
On the last scheduled day of the Court's term in June, the Court issued an order in Citizens United v. Federal Election Commission requiring the parties to brief whether the Court should overturn two cases upholding corporate (and union) independent spending in candidate elections: Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. FEC. For background on the Court's order, check out this Slate piece.
The briefs were filed Friday. I have now had a chance to review the government's supplemental brief and Citizen United's supplemental brief. (Amicus briefs are due Friday, and simultaneous reply briefs are due August 19).
There is much to like about the government's brief, and I have more about that below. But let me begin with the most interesting feature of the brief: the government does not even mention the central holding of Austin, much less defend it. To put this in context, before Austin, in Buckley v. Valeo the Court had held that contributions to candidates could be limited because of the government's interest in preventing the corruption of elected officials (through quid pro quos and otherwise) and the appearance of such corruption, but that independent spending by individuals could not be limited consistent with the First Amendment. With truly independent spending, the Court in Buckley said, the link to corruption of candidates is too tenuous, and the costs to freedom of speech and association too high to justify such limits. Buckley did not deal with corporate spending limits, but in a 1981 case, First National Bank of Boston v. Bellotti, the Court held that corporate spending limits in ballot measure elections, in which candidates are not involved, are unconstitutional. In Austin, however, the Court held that corporate spending limits are constitutional. The key passage in Austin is the following:
Though the Austin Court spoke of a "different type of corruption" (like the "other white meat"), the anti-distortion rationale is better thought of as a type of equality argument, rejecting "disproportionate" corporate spending that can "unfairly influence elections." (I've written more on this "barometer equality" argument here.)
As I expected, CU's brief goes right against this anti-distortion rationale in its supplemental brief. The brief opens: "For the proper disposition of this case, the Court should rejected the anti-distortion rationale for suppressing corporate political speech formulated in Austin and relied upon in McConnell..." But the government brief does not mention the rationale, even in passing as it did in its original brief (see p. 15: "In particular, because of the numerous advantages that the corporate form confers, a corporation's ability to pay for electoral advocacy has 'little or no correlation to the public's support for the corporation's political ideas.' McConnell, quoting Austin.").
On the one hand, it is no surprise that the government does not want to emphasize Austin anti-distortion. After all, as I detail here, this equality rationale has already been undermined by the Court's recent opinion in FEC v. Davis, and the equality rationale is not likely to find a receptive audience in either "swing" voters on the question in Citizens United, Chief Justice Roberts and Justice Alito. On the other hand, the government surely anticipated that Ted Olson and company in CU would be all over the Austin rationale. I suppose that the government figured it would just save its points on this question for its August 19 supplemental reply brief. The closest the government comes in this brief is to stress that corporations are not natural persons (p. 10.)
But in passing on discussing the equality/anti-distortion rationale, the government puts a great deal of effort into an argument that only Justice Stevens has embraced (in his Austin concurrence): that the government can justify limits on corporate independent spending to prevent quid pro quo corruption of candidates. In other words, the argument that the government pushes here requires the Court to reject, at least in part, one of the central tenets of Buckley, that independent spending cannot be limited because the independent nature of the spending means it cannot corrupt candidates. The government asks at least for remand to the three judge court to make an evidentiary record on this point (one way, I suppose that the Court could, for a time, avoid the constitutional question). I recall discussing with others whether to push this traditional anti-corruption justification in earlier amicus briefs I've filed in campaign finance cases, but it has always seemed to be a real long-shot kind of argument.
The other point the government makes, which is perhaps a bit more promising, is that corporate spending limits in elections are necessary to protect shareholders, a point Justice Brennan emphasized in his Austin concurrence. But that theory is in great tension with Bellotti, which rejected it in the context of ballot measure elections.
Finally, in what is sure to please Mickey Kaus, the government (in footnote 1) seems to invite the Court to expand the MCFL exemption for ideological corporations are "financed 'overwhelmingly' by individual donations."
As I've said, there are lots of ways the Court can duck the constitutional issue in Citizens United. But given the first oral argument, I fully expect SG Kagan to be pushed on the Austin anti-distortion/equality rationale. We may get a better sense of what she would say in response to such questions when we see the government's reply brief. So far, there's no defense of the concept in sight.
The government makes a lot of good points in the brief, especially as to why this is not the proper case to decide these questions and about the application of stare decisis principles. But if the Court does decide the constitutional question, getting to 5 to reaffirm Austin remains an uphill climb.