Cross Posted from The Albany Project
This is Part III of a series on the Citizens United v FEC decision.
Part I can be found here.
Part II can be found here.
When last we saw our intrepid corporate hero’s...
The case should have ended on page 12 with a unanimous determination.
But, alas, it didn’t...
As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment .
This statement implies that accepting their own conclusion and deciding against Citizens United will result in some new "chilling" effect on political speech. This does not follow. Upholding existing law that has been on the books in one form or another for 103 years will not "chill" anything new.
The foregoing analysis shows nothing more than the fact that this corporation’s movie was properly regulated under existing law. There has been no showing of chilling effect on political speech new or old. But let’s see what they say next...
It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling.
As a principle that sounds good. Courts should not accept unsound arguments or principles wide or narrow. However, no unsound principles or arguments have been shown except for a few alternatives suggested and rejected above. The existing law has not been shown to unsound. CU’s case has been found to be unsound and alternative suggestions to existing law have been found to be unsound. CU’s case has been rejected item by item and the alternatives are not law. Nothing further to discuss. Right? Right?
Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin .
Now, let’s go back to the idea that you give the defense all due consideration by proceeding from narrow to wider to arguments until all such arguments are exhausted and you make final determination.
Citizens United made 4 as-applied arguments and all 4 were duly considered and found wanting. To any reasonable person that is the point of exhaustion. The court, in this one sentence shows a pre-determined bias to rule in Citizens United’s favor someway, somehow, somewhere.
How do they think they are going to get away with that?
Citizens United stipulated to dismissing count 5 of its complaint, which raised a facial challenge to §441b, even though count 3 raised an as-applied challenge. See App. 23a (count 3: "As applied to Hillary , [§441b] is unconstitutional under the First Amendment guarantees of free expression and association"). The Government argues that Citizens United waived its challenge to Austin by dismissing count 5. We disagree.
Ah! We’re going to make their case for them since they didn’t make it for themselves!
Now here we get into some legal precedents and procedures that are rather intricate but logic ought still prevail.
First, even if a party could somehow waive a facial challenge while preserving an as-applied challenge....
Nonsense. A facial challenge is to the broad constitutionality of a law and an as-applied challenge is a narrow one regarding how that law was implemented. It is simple and quite clearly logical to make an as-applied challenge without implicating the facial validity of a law. Let’s consider...
I’m walking down the street minding my own business and for no reason the police handcuff me and haul me off to jail.
I can reasonably go to court and argue that I have been wrongfully arrested (as-applied) without challenging the right of the police to arrest people at all (facial).
It’s statements like these that make it clear these guys know they are on shaky ground.
... that would not prevent the Court from reconsidering Austin or addressing the facial validity of §441b in this case. "Our practice ‘permit[s] review of an issue not pressed [below] so long as it has been passed upon . . . .’ " Lebron , 513 U. S., at 379 (quoting United States v. Williams , 504 U. S. 36, 41 (1992) ; first alteration in original). And here, the District Court addressed Citizens United’s facial challenge.
Now here legal experts may have to clarify the issue. Such discussion is welcome in the comments. For my own part...
On the one hand it seems reasonable for the court to take up and consider the entire case in an effort to ensure they get it right. On the other hand they were presented with a very clear cut set of issues that were in dispute of which the facial validity of 441b was not one. Opening the door for the court to consider issues not brought before is a very wide barn door indeed. It would seem to me that there would have to be a good, sound logical path from the issues presented back to issues already decided and agreed upon in order for the court to expand its investigation into those matters. In my view no such logical path has been presented... other than the clear pre-determined desire of these 5 men to eliminate corporate electoral spending regulations.
("Citizens wants us to enjoin the operation of BCRA §203 as a facially unconstitutional burden on the First Amendment right to freedom of speech"). In rejecting the claim, it noted that it "would have to overrule McConnell " for Citizens United to prevail on its facial challenge and that "[o]nly the Supreme Court may overrule its decisions."
In his dissent Justice Stevens makes clear that Citizens United dropped its claim of facial unconstitutionality not that the District Court rejected the claim. Here is the pertinent sectionof their request for summary judgment in District Court.
As to Count 5 (Prohibition facially), the addition of this count was based on the FEC’s initial inability to determine whether the "Questions" ad was prohibited. Now that the FEC has determined the ad not to be prohibited Citizens considers Count 5 moot. If this jurisdiction permitted the dismissal of individual counts, Citizens would dismiss Count 5 without prejudice. As this is impossible, Citizens hereby advises the Court of its intent to abandon the count and asks the Court to consider the count moot and not rule on it.
"It’s worse that! He’s dead Jim. Dead!"
So let me get this straight. Their original facial challenge was in regard to one of the ads (not the film itself) and existed only because the FEC did not initially determine if it was allowed or not. The FEC decided in their favor in regard to the ad which made the question moot. In other words, the part that brought up the facial challenge was dropped causing no harm to Citizens United for them to take to any court anywhere in the first place.
Yet... these 5 men use this as a center piece of their rationale for overturning 103 years worth of law? It get’s worse than that Jim...
The District Court did not provide much analysis regarding the facial challenge because it could not ignore the controlling Supreme Court decisions in Austin or McConnell . Even so, the District Court did " ‘pas[s] upon’ " the issue. Lebron , supra , at 379.
This is completely disingenuous. Citizens United dropped the claim therefore there was no reason for the District Court to address much less analyze the claim. The control of the Supreme Court was not at issue.
Further, while a lower court might not have the power to overturn a decision of the higher court it certainly does have the power and obligation to interpret that decision as it believes it applies to the case before them. The implication here is disingenuous. Lastly...
Even so, the District Court did " ‘pas[s] upon’ " the issue. Lebron , supra , at 379.
How weak is that? Again, it’s statements like this that make it clear how weak an argument deez guyz knew they had.
However...
After the District Court addressed the facial validity of the statute, Citizens United raised its challenge to Austin in this Court. See Brief for Appellant 30 (" Austin was wrongly decided and should be overruled"); id. , at 30–32. In these circumstances, it is necessary to consider Citizens United’s challenge to Austin and the facial validity of §441b’s expenditure ban.
Sure enough in the Brief of the Appellant they say "Austin was wrongly decided and should be overruled." Now here is where a legal procedural expert could be helpful.
These documents follow a standard form and part of that form is that they open with the "Questions Presented." There are 2 questions presented and they both are specifically "as-applied."
The quote above is in a subsection regarding question #1
I. BCRA § 203 IS UNCONSTITUTIONAL AS
APPLIED TO THE DISTRIBUTION OF
CITIZENS UNITED’S DOCUMENTARY FILM
THROUGH VIDEO ON DEMAND .......................16
(bolding emphasis mine)
Reading further through that section of their brief we come to this summary of their argument:
But whatever the continuing vitality of Austin, its rationales clearly do not support a ban on speech that, like Hillary, is funded predominantly by individuals. MCFL held that a voluntary membership organization committed to a political purpose does not lose its First Amendment rights simply by taking the corporate form.
So is the court reasonably taking up the facial challenge or not? I do not know for sure. Procedural experts please chime in.
What I do know is this... if you have a sound, unassailable argument for a position you present it and move on to the next issue. If you have nothing but weak arguments you pile them up together in the hope that they accumulate into a strong argument. Here the majority has presented several rationales before getting to this which appears to be their best argument. Why the weak and clearly tenuous "pass upon" (a moot) argument first if this one is sound? I would love to hear what experts have to say about this.
Speaking of experts... here is what Justice Stevens speaking for the 4-person minority has to say on the subject:
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell , it is important to explain why the Court should not be deciding that question.
Scope of the Case
The first reason is that the question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. 2 Our colleagues’ suggestion that "we are asked to reconsider Austin and, in effect, McConnell ," ante , at 1, would be more accurate if rephrased to state that "we have asked ourselves" to reconsider those cases.
Ouch. But further...
In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a–24a. In its motion for summary judgment, however, Citizens United expressly abandoned its facial challenge, 1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the dismissal of that claim, id. , Nos. 53 (May 22, 2008), 54 (May 23, 2008), App. 6a. The District Court therefore resolved the case on alternative grounds, 3 and in its jurisdictional statement to this Court, Citizens United properly advised us that it was raising only "an as-applied challenge to the constitutionality of ... BCRA §203." Juris. Statement 5. The jurisdictional statement never so much as cited Austin , the key case the majority today overrules. And not one of the questions presented suggested that Citizens United was surreptitiously raising the facial challenge to §203 that it previously agreed to dismiss. In fact, not one of those questions raised an issue based on Citizens United’s corporate status. Juris. Statement (i). Moreover, even in its merits briefing, when Citizens United injected its request to overrule Austin , it never sought a declaration that §203 was facially unconstitutional as to all corporations and unions; instead it argued only that the statute could not be applied to it because it was "funded overwhelmingly by individuals." Brief for Appellant 29; see also id., at 10, 12, 16, 28 (affirming "as applied" character of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009) (counsel for Citizens United conceding that §203 could be applied to General Motors); id., at 55 (counsel for Citizens United stating that "we accept the Court’s decision in Wisconsin Right to Life ").
And in damning conclusion...
" ‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,’ " Youakim v. Miller , 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States , 274 U. S. 195, 200 (1927) ), and it is "only in the most exceptional cases" that we will consider issues outside the questions presented, Stone v. Powell , 428 U. S. 465, 481, n. 15 (1976) . The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any. That is unsurprising, for none exists.
Setting the case for reargument was a constructive step, but it did not cure this fundamental problem. Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.
Sorry for quoting so heavily but he addresses several of the questions raised above as well as this one.
My take on this is that the majority has a very slim avenue for re-opening the door to the facial challenge but that they have to build a clear, logical and "exceptional" reason for doing so. The majority clearly argues, when we get to the real issues at hand, that Free Speech is that exceptional. I agree. Our Free Speech rights are so fundamental as to be exceptional. The problem with the majorities argument is that they do not build even the slimmest case for getting from here to there, from the case at hand with its particular facts and arguments to anything approaching a constitutional challenge to our fundamental free speech rights.
The 5-man majorities political agenda is presented naked before our eyes.
The majority goes on with other arguments supporting their attack on the law from which I will extract only a few key lines:
The parties cannot enter into a stipulation that prevents the Court from considering certain remedies if those remedies are necessary to resolve a claim that has been preserved.
Sounds reasonable. However, it is clear from the above discussion on the actual claims in the case that the necessary remedy of simply denying those claims is readily available to the court without needing to take any exceptional measures.
Citizens United has preserved its First Amendment challenge to §441b as applied to the facts of its case; and given all the circumstances, we cannot easily address that issue without assuming a premise—the permissibility of restricting corporate political speech—that is itself in doubt.
Two things... One, you did easily address the issue by denying their claim. Two, the permissibility of restricting corporate political speech is not in doubt in this case as it is not in question in this case. The question comes first. Doubt only arises if there is not a clear answer to the question. The question did not arise... in this case. The only doubts are those that those 5 unelected individuals brought with them into the courtroom that day.
As our request for supplemental briefing implied, Citizens United’s claim implicates the validity of Austin , which in turn implicates the facial validity of §441b.
I believe that is called begging the question. Because we asked you to come back and address the validity of Austin that means that your case implicates the validity of Austin.
Pretty weak stuff. Even weaker are the next couple pages in which they reference their own dissents in other cases to bolster their arguments here. Which they conclude by once again showing their pre-determination to change the law to their personal liking.
As noted above, Citizens United’s narrower arguments are not sustainable under a fair reading of the statute.
In other words, under the law Citizens United loses their case. Period.
In the exercise of its judicial responsibility, it is necessary then for the Court to consider the facial validity of §441b.
On its face, ok, defendants deserve all due consideration before being judged against. I hope they remember that in death row appeals and the like. At the same time though it brings us back to the court needing to show a clear path from the narrow conclusions of the case at hand to an extension of the case to a wider constitutional issue that has not been brought before it.
Any other course of decision would prolong the substantial, nation-wide chilling effect caused by §441b’s prohibitions on corporate expenditures.
This is clear evidence of a pre-determination of the case. No evidence of a "substantial, nation-wide chilling effect" has been presented to the court. None. Corporate electoral spending has been under regulation of one sort or another since 1907 and the compilation of laws at question since the 70’s with a major change in the early 90’s. What "substantial, nation-wide chilling effect" are they talking about?
Consideration of the facial validity of §441b is further supported by the following reasons.
Here we go again with bolstering a weak argument with more "stuff" hoping the accumulation will amount to something. Let’s see what they got.
First is the uncertainty caused by the litigating position of the Government.
Mom! They made me do it!
... the Government suggests, as an alternative argument, that an as-applied challenge might have merit.
An as-applied challenge might have merit therefore a wider challenge is the logical conclusion? Nonsense. Utter unabashed illogical nonsense.
When the Government holds out the possibility of ruling for Citizens United on a narrow ground yet refrains from adopting that position, the added uncertainty demonstrates the necessity to address the question of statutory validity.
Here they beg the question once again. The court decided on its own to challenge the validity of the statute. In response the government offers a possible alternative argument in which it is willing to concede an exception in this case in order to avoid having the court pursue its pre-determined intent to strike down the entire statute. But because the government doesn’t pursue this as the optimal solution the court then uses this alternative offer as evidence to support their original intent to question the statutes validity. Circular reasoning at its worst.
So if I acknowledge that my unprovoked slapping of you is a bad thing it brings into question the validity of a person or nation defending themselves if they are attacked? I’m a non-violent person but even I don’t go that far. A person and a nation have the right to defend themselves even if it is smarter, more effective and morally sounder to pursue non-violent responses to aggression whenever possible.
Second, substantial time would be required to bring clarity to the application of the statutory provision on these points in order to avoid any chilling effect caused by some improper interpretation.
The statute is clear and has been working for almost two decades. Only those with a pre-determined desire to attack it or circumvent it question what it says.
A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit.
I’ll agree with that. But here is where we have to remember that such cases are often the balancing of one important principle against another. The majority argues that this demands no regulation or control whatsoever. That is a cop-out, a dereliction of the duty to understand and make the hard balancing choices that life in a democracy require.
Third is the primary importance of speech itself to the integrity of the election process. As additional rules are created for regulating political speech, any speech arguably within their reach is chilled.
Ah! Finally we get to a real issue. Under what circumstances can speech be regulated without harming our rights as individuals and the political process.
After a few sentences regarding the voluminous nature of governmental regulation...
As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak.
Hogwash. Political discourse happens everyday in myriad forms without people having to seek governmental approval of the right to speak first.
Here comes the good stuff though. Let’s demonize the government and use loaded words to misconstrue the function of the FEC.
Because the FEC’s "business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression." Freedman v. Maryland , 380 U. S. 51, 57–58 (1965) . When the FEC issues advisory opinions that prohibit speech, "[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas." Virginia v. Hicks , 539 U. S. 113, 119 (2003) (citation omitted). Consequently, "the censor’s determination may in practice be final." Freedman , supra , at 58.
I know the FEC is looking over this writing word for word to see whether they should censor it before it is posted. Oh wait. It’s already posted and you are already reading it. What’s that knock at my door. AIEEE! It’s the FEC stormtroopers coming to take me away!
Yet, the FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.
Ambiguous test? What ambiguous tests? The majority listed a variety of statistics in an attempt to show the government had overregulated the issue but nowhere did they establish anything about ambiguity. Nor to the best of my knowledge did Citizens United assert that they were impeded by the ambiguity of the rules.
Government can make things over cumbersome sometimes. The original list presented made it sound real bad. An 11-factor test to determine if a corporation’s... and remember we are talking about corporate speech here not the speech of real live flesh and blood people... planned advertisement is permissible or not is just not that big a deal. I have to fill out considerably more than 11 fields (factors) on a credit card or other loan application from a corporation before they’ll consider if I am worth robbing blind with their interest rates. 11 factors? Oh, the horrors.
And finally,
The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity has been demonstrated. See WRTL , supra , at 482–483 ( Alito , J., concurring); Thornhill v. Alabama , 310 U. S. 88, 97–98 (1940) . For these reasons we find it necessary to reconsider Austin .
"Speech that is beyond all doubt protected"
Once again they show their pre-determination of the case. Is corporate speech "beyond all doubt protected?" We haven’t even come close to determining that here. We haven’t even addressed what corporate speech is or who exactly it is that is speaking when a "corporation speaks" or whether they are covered under the 1st amendment at all or what types of corporate forms might or might not be permissible or subject to reasonable regulation. "Beyond all doubt."
And there we have it. The majorities abuse of procedure and precedent in their naked attempt to manipulate the political process to their personal likings.
5 unelected men overrule a primary elected body of 535 who represent the beliefs and wishes of a nation of over 300,000,000.