Sunday, February 7, 2010

Part One-Working Through Citizens United: Confrontation

I've had a chance to re-read Citizens United (CU), the Supreme Court's latest campaign finance decision and upon re-reading I've found the majority much more interesting than I did on the first reading.  In a series of posts, I will work through the Court's CU reasoning.  In this post, I make the point that the Supreme Court wanted to reach the constitutional question.  Even though the Court had an option of avoiding the constitutional question, the simple fact of the matter is that the Court sought a confrontation with Congress on this issue.

Citizens United is a non-profit corporation that used some corporate money to create an anti Hilary Clinton film.  The question in CU was whether corporations, especially for-profit corporations, (and unions) have a First Amendment right to spend money out of their general treasuries to engage in political advocacy.   Citizens United challenged two federal statutes.  The first statute, the expenditure ban, has been interpreted to say that if corporations (and unions) want to spend money for express political advocacy they have to establish a separate PAC to do so.    The second statute prohibits corporations from running ads within 30 days of a primary or 60 days of a general election that expressly advocates the election or defeat of a clearly identified federal candidate.  The Supreme Court in a 5-4 decision, with the conservatives in the majority, ruled that both statutes are unconstitutional because they violate the First Amendment.  Justice Kennedy wrote the majority opinion.

The Court makes a number of interesting moves.  The Court had previously held that the statute does not apply to nonprofit corporations that fund their expenditures with private funds.  Even though Citizens United is a nonprofit corporation because it used some corporate money to fund its expenditure, it could not take advantage of this prior holding.  In light of the prior holding, the government argued for an extension of the previous holding.  Under this view, the expenditure ban would not apply to nonprofit corporations that fund their political expenditures primarily with private money.  Had the Court accepted that argument, it would have been unnecessary to reach the constitutional question.  

The Court rejected the argument, but it not clear quite why.  The Court argued that it would have to rewrite the statute to create an exception.  But that has never stopped the Court before; it rewrote a key part of the voting rights act in the NAMUDNO case recently just to avoid the constitutional question.  The Court also argued that extending the exception would require too much case-by-case adjudication because courts would have to figure out how much corporate money would be too much to forfeit the exception.

Fundamentally, what comes across quite clear in the opinion is that the Court wanted to reach the constitutional question.  It wanted a confrontation with Congress on this issue.  The Court wanted to establish once and for all, from its perspective, that bans on corporate political expenditures are firmly unconstitutional under the First Amendment.  Citizens United presented an opportunity, and the conservative majority took it.

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