September 09, 2009

Initial Thoughts on the Re-Argument in Citizens United

As I noted, I cannot with confidence make predictions about the outcome of the Citizens United case based on oral argument questions, given the recent experience in NAMUDNO in which CJ Roberts and Justice Kennedy seemed sure votes to overturn section 5 of the Voting Rights Act but did not. But there was absolutely nothing in the Citizens United oral argument questions of the two likely "swing justices" in this case to give any comfort to those who believe that Congress should have the power to limit corporate spending in candidate elections.

It was a hot bench, with every Justice besides Justice Thomas asking numerous questions. (Justice Thomas is the Justice taking most deregulatory position in campaign finance jurisprudence, so his vote is not in doubt.) From oral argument, the Court lines up 5-4. Justices Breyer, Ginsburg, Sotomayor and Stevens were looking for a way to decide this case without reaching the constitutional question. There are at least three possibilities here: (1) expand the MCFL exemption; (2) construe BCRA so that the Snowe-Jeffords amendment applies; or (3) as Justice Sotomayor suggested, construe the statute on one of the statutory bases to avoid the constitutional question. (One possibility---the one I think most likely for at least some Justices--is to say that McCain-Feingold does not apply to video-on-demand.)

On the other side, we have the three Austin dissenters---Justices Kennedy, Thomas, and Scalia---who gave no reason to believe they would switch their votes now to save Austin [CORRECTION: Thanks to a reader for pointing out that Justice Thomas was not on the Court in Austin. He dissented on Austin's vitality in the McConnell case.]. Chief Justice Roberts and Jutice Alito's questions were uniformly hostile toward the government. One could almost hear the gears turning in the Chief Justice's head, as he got the government basically to admit it was abandoning the Austin distortion argument and relying on two new arguments which had never been accepted by the Court in the context of independent corporate spending: shareholder protection and preventing quid pro quo corruption. As I've written, I believe the concession is a strategic error. It would allow the Chief now to write an opinion that does not address the equality question head on, and make it clear what the Court is doing. He can simply say that the government has abandoned the issue and so the Court need not address it. Still Waxman pushed it a bit, so hopefully the Court will at least address it in its opinion. (If the Court overturns Austin, I would like a clear statement from the Court---so the public understands---that the public lacks the power to say that the vast inequalities in wealth in this country (particularly corporate wealth) which are a necessary part of the free market allow for limits on corporate candidate-election-related spending so that disparities in electoral power don't translate into inequalities of political power.) Justice Alito too, who has expressed a desire to have a full airing about whether stare decisis should apply to Supreme Court precedents, did not seem too bothered by overruling a 1990 and 2003 case. He bristled when being told he would be overruling 50 or 100 years of precedent. The Chief also did not see a reason to go with expanding MCFL over an overruling of Austin. I did not hear him, or Justice Scalia who mentioned constitutional avoidance, give any kind of indication as to why the constitutional avoidance doctrine should not apply to a case like this, as it did in NAMUDNO. If the Court ultimately backs away from the constitutional holding, it could well do so on avoidance grounds.

A few notes about the oral advocates. All four did an excellent job. I think Abrams and Waxman were somewhat less effective because they had only 10 minutes to make their points and they got bogged down by the hot bench. Olson was outstanding as I expected, especially on rebuttal. He was able to use the government's concessions---necessary on the book banning issue because of the earlier oral argument---to his advantage, by raising the specter of a government censor that changes its positions at its whim. Kagan was also outstanding. I was concerned about this being her first argument, as this case is exceptionally difficult, even for election law cases. But she proved to be a natural advocate. She had a great conversational style and was effective but respectful.

Finally, Justice Sotomayor asked the questions I would have asked, and seems likely to be a very strong replacement for Justice Souter on campaign finance issues. She too sounded like she was a seasoned veteran on the Court.

Regardless of how this case comes out, this was an excellent argument all around and a joy to listen to.

Posted by Rick Hasen at September 9, 2009 10:51 AM