Over the summer I wrote Constitutional Avoidance and Anti-Avoidance at the Roberts Court (forthcoming, 2009 Supreme Court Review), which contrasts the Supreme Court’s approach in NAMUDNO, in which the Court reached out and avoided a constitutional question through an implausible statutory interpretation analysis with the reargument order in the Citizens United case, which teed up a major constitutional issue for review even though there was an eminently plausible statutory interpretation available to the Court to avoid the constitutional question posed by the case. Neither case follows the usual understanding of the doctrine of constitutional avoidance (which says that the Court should avoid deciding a difficult constitutional question when it can do so through a plausible acts of statutory interpretation). I called what the Court did in Citizens United an act of “anti-avoidance.”
One of my colleagues who read the draft said that it was “premature” in that the Court had not yet decided Citizens United, and it could ultimately rely on the avoidance argument. My response to that point in the article (which I believe has been vindicated by the intense media speculation about the case) is the following:

Neither NAMUDNO nor Citizens United fits comfortably in the Supreme Court’s usual approach to the constitutional avoidance doctrine. NAMUDNO does not fit because the Court adopted an implausible interpretation of the statute. Indeed, the Court’s statutory interpretation analysis was so weak that the Court failed even to respond to the contrary statutory points raised by the government and offered in detail by the district court. It is probably no surprise that in stating the avoidance principle in NAMUDNO, the Court did not cite the usual formulation of the rule requiring a plausible statutory interpretation. Instead, the Court stated more flatly that “[o]ur usual practice is to avoid the unnecessary resolution of constitutional questions.” The Court then stated that “judging the Constitutionality of an Act of Congress is the ‘gravest and most delicate duty that this Court is called upon to perform.'” Finally, the Court cited Escambia County for the proposition that the Court will not decide a constitutional question if there is some other ground to dispose of the case. In practice, the Court jettisoned the requirement of a plausible statutory interpretation in NAMUDNO to avoid a sensitive and difficult constitutional question.
But the Court’s approach was even starker when viewed against the Citizens United order the Court issued just one week later. The Court undoubtedly could avoid deciding whether to overrule Austin and McConnell’s upholding of spending limits on corporations and unions through a plausible interpretation of the electioneering communication statute so as not to apply to video-on-demand. But regardless of how it ultimately decides the case, it ratcheted up the importance of the case and the rhetoric through the reargument order.
Thus, the operative question here is not simply how plausible a statutory construction must be before the avoidance canon kicks in, but why the Court adopted such an inconsistent approach. If it is true that the “usual practice” is to “avoid the unnecessary resolution of constitutional questions” and that it is the “gravest and most delicate duty” to review the constitutionality of an Act of Congress, why did the Court in Citizens United not conclude, as in NAMUDNO, Ricci, and Escambia County, that the Court will not decide the constitutional question because there is some other ground to dispose of the case? Is not avoidance especially warranted in a case in which the constitutional issue was abandoned in the trial court and not presented in the jurisdictional statement? Why did the Court not follow its usual practice in Clark v Martinez, to the effect that “[i]f [one of two plausible statutory constructions] would raise a multitude of constitutional problems, the other should prevail…”? Why did the Court instead set up an in-your-face high stakes constitutional showdown on the question–whether or not it ultimately issues a constitutional ruling on the merits?

(my emphases; footnotes omitted)
The last part of my paper gives three possible answers to these questions. I was hoping that I’d be able to update my argument with analysis of the actual opinion in Citizens United. But, alas, the time has come to go to press at the Supreme Court Review, and still no opinion from the Court. I’ve now posted the near-final version of my article at the SSRN link above, and I’ll have to analyze the actual opinion(s) in Citizens United in a future article.