July 08, 2010

Why Wasn't Citizens United a 9-0 Decision in Favor of Citizens United?

This is my first in a series of posts in which I will highlight some interesting, though somewhat "inside baseball," posts about campaign finance and legislation issues in the U.S. Supreme Court's Citizens United decision. Most of these observations appear in footnotes to my article, Citizens United and the Illusion of Coherence, 109 Michigan Law Review (forthcoming 2011). (The article link will take you to SSRN where you can download a newly-revised version of the article.)

One interesting question about CU is why it was not a 9-0 opinion, with five Justices deciding for CU on constitutional grounds, and four other Justices deciding for CU on statutory grounds. The issue arose in the context of the dissent's argument that the Court should not have reached the constitutional question whether the First Amendment gives corporations a right to spend independently in candidate campaigns, but instead should have resolved the case on statutory grounds. The dissent pointed to a number of statutory arguments, including one that the statute did not apply to video on demand. This provoked a response from Chief Justice Roberts in his concurrence.

As I explain in fn. 153 of the current draft of the Michigan piece:

    Chief Justice Roberts called the dissent's views of these narrower grounds "quite perplexing" because the dissenters "presumably agree[] with the majority that Citizen United's narrower statutory and constitutional arguments lack merit--otherwise its conclusion that the group should lose this case makes no sense." Id. at 918 (Roberts, C.J., concurring). The dissent responded that there is "nothing perplexing about the matter" because the dissenters "do not share [the majority’s] view of the First Amendment" and therefore there is no occasion "to practice constitutional avoidance or to vindicate Citizens United's as-applied challenge." Id. at 938 n. 16 (Stevens, J., dissenting). One might add that the dissent likely wanted to avoid the political optics of a 9-0 defeat for the government (albeit on vastly different grounds), recalling the majority's controversial statement in Bush v. Gore, 531 U.S. 98, 111 (2000), that "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy... The only disagreement is as to the remedy."

This exchange raises an interesting constitutional avoidance question as well: Are there ever situations when a statutory interpretation is plausible enough so as to implicate the doctrine of constitutional avoidance, and that should be adopted to allow a plaintiff to win a case in such circumstances, but not strong enough that the statutory analysis should prevail in the event the court concludes there is no constitutional doubt? To the CU dissenters, the statutory arguments in this case must have fallen into this category. It seems like a very thin window, and I cannot think of other examples like this one.

Posted by Rick Hasen at July 8, 2010 02:10 PM