September 13, 2009

Justice Scalia, Faux Judicial Restraint, and Real Judicial Restraint in Citizens United

I have always been a fan of Justice Scalia's opinions, even when I don't agree with them. They are witty and well-argued, though they can be caustic. The best feature is that the Justice calls them as he sees them. In his dissent in the 1990 Austin case, he began: "'Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: ___' In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe."

Similarly, in his concurrence in the Wisconsin Right to Life case, Justice Scalia denounced Chief Justice Roberts' opinion as effectively overruling the McConnell case without saying so. "This faux judicial restraint is judicial obfuscation."

So I was somewhat surprised to hear Justice Scalia's repeated line of argument at the Citizens United reargument (transcript) that the requirement that corporations pay for federal-election related expenditures is not flat-out unconstitutional (as Justice Scalia has repeatedly said in the past) but perhaps merely "overbroad," because it includes non-wealthy corporatons. Ned Foley thinks this line of argument is promising, because it will allow for new line-drawing by Congress and state legislatures in the event Austin is overturned.

Contrary to Ned, I believe a ruling overturning Austin on the "narrow" grounds of overbreadth would be, to use Justice Scalia's own words, faux judicial restraint that obfuscates what the Court is really doing. Its purpose would be to blunt the force of an overruling of Austin through the claim that it is a mere remand to Congress to rewrite the statute more narrowly. Nonsense. In the event that Congress overcomes the political obstacles to passing a new 441b targeted only at wealthy corporations, there's little doubt that the revised statute would then be struck down as unconstitutional, because targeting wealthy corporations would run afoul of what the Court majority would see as an improper attempt to equalize spending on elections in violation of the First Amendment. If that's what the majority thinks now, it should say it now and not obfuscate with a point about overbreadth. It should have to pay the political price for such a drastic holding.

If Justice Scalia were serious about real judicial restraint, he should consider application of the doctrine of constitutional avoidance to this case. and hold that video-on-demand is not covered by the McCain-Feingold law (thereby avoiding ruling on the constitutional issue). What does that doctrine require in Citizens United? Consider these words:

    the canon of constitutional avoidance "is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts....If [one of two plausible statutory constructions] would raise a multitude of constitutional problems, the other should prevail---whether or not those constitutional problems pertain to the particular litigant before the Court.

And this:
    The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one--the one the Court would adopt in any event. Such a standard would deprive the doctrine of all function. "Adopt the interpretation that avoids the constitutional doubt if it is the right on" produces precisely the same result as "adopt the right interpretation." Rather, the doctrine of constitutional doubt comes into play when the statute is 'susceptible of' the problem-avoiding interpretation--when that interpretation is reasonable, though not necessarily the best.

The author of these statements? Justice Scalia. If he takes these statements seriously, this is an easy case. The constitutional issue should not be reached.

Posted by Rick Hasen at September 13, 2009 09:47 PM