Wednesday, February 17, 2010

More on Citizens United and Segregated Funds

In previous posts I offered two observations on Citizens United.
First, the Court wanted to make a broad constitutional ruling in CU.  Notwithstanding the majority's and C.J. Roberts's protestations to the contrary, the majority could have held that de minimis contributions from for-profit corporations were not sufficient to make CU subject to section 441(b).  This would have been a reasonable extension of FEC v. Massachusetts Citizens For Life (MCFL).  Alternatively, the Court could have held that documentaries are not subject to campaign finance regulations because they're not electioneering communications or because a documentary does not constitute express advocacy.  Indeed, CU argued that its film was a documentary and was not express advocacy.  CU's own understanding of its film was rejected by the Court on the ground that the express advocacy standard is an objective one and not a subjective standard.
The upshot here is that the Court wanted to give the statute and its implementing regulations the widest reach possible to facilitate its argument that statute is an unconstitutional infringement on speech rights.

I also observed that the Court could have found that a segregated fund is not a speech infringement.  The statute did not prevent corporations from speaking.  As Justice Stevens states in dissent the question is whether CU could use general treasury funds to engage in express advocacy in the prohibited period (in this case 30 days) before a federal election.  So, in many respects, the actual burden on speech is quite limited.

The majority of course disagreed.  The argument that a segregated fund imposes an undue burden on speech is the linchpin of the Court's argument and I would argue the weak link of that argument.  The Court concludes because PACs have to comply with extensive regulations just to speak, because "PACs . . . must exist before they can speak"; and because "Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign" the segregated fund requirement is a ban on speech.

These arguments are compelling only if the Court would find equivalent burdens in other contexts similarly problematic.  For example, ballot access laws are notoriously burdensome.  States often impose significant requirements especially on third parties who want to get on the ballot.  Everything that the Court says above about the segregated fund applies with greater force to ballot access laws: they impose extensive regulations, you have to comply with the rules before you can have a presence, and because the rules are so restrictive, many third-party candidates often can't get on the ballots.  If this "undue burden" rule is one of general applicability, then I'm willing to accept it.  But if it is a rule to facilitate the Court's ability to get at the constitutional question, then the Court is rightly accused of overreaching here.

In the next post, I will address the Court's calling into question the constitutionality of the FEC.

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