soapbox

A few thoughts about constitutional anti-avoidance and Citizens United.

Because I no longer update this blog much, I haven't covered the biggest election law story of the year, Citizens United, which overturned Austin, and established a right for corporations to engage in non-coordinated independent expenditures. So Microsoft can go directly after the state attorney generals it doesn't like, and Citizens United can put out books and movies without going to jail. They have books against Hillary, Gore, and Obama, and are likely to stay in the business.

The other thing CU did was uphold disclaimers on speech by corporations, narrowing Talley v California, which turns 50 this year.
This post is about addressing anti-avoidance in the context of the disclaimer issue.
Frequently, and as an informal rule of justiciability, the court decides cases before it on narrow grounds, preferring to rule on statutory issues instead of of reaching constitutional questions, or
construing statutes instead of declaring them unconstitutional, or even construing statutes instead of having to ponder whether they might be unconstitutional.
The Roberts court has been noted for finding unanimous grounds for narrow rulings of this sort more often than the Rhenquist court had.
There is a big controversy about Citizens United and whether it needed to overrule Austin, or could have ruled more narrowly. This was a hot topic in the speculation about the case as we waited for it.
The long dissent by Stevens argued about this, and there was a concurrence by the Chief Justice specially responding to the dissent. That may have been a factor in the delay in announcing the case.
I find Justice Robert's concurrence fairly plausible. He says there was no alternative opinion on narrower grounds that had 5 votes; Justice Kennedy's broad opinion was the narrowest option of those which were right.
The majority and dissent/partial concurrence did find one thing to agree on. 8 members of the court upheld the disclaimer and disclosure requirements for the ads for the anti-Hillary movie.
Only Justice Thomas dissented from that part of the opinion.
Because they didn't disagree, the disclaimer aspect of the case wasn't discussed in the dissent and concurrence.
But it struck me the other day that it's a significant example of anti-avoidance.
Citizens United, in a lawsuit filed by Jim Bopp but argued by other counsel, had challenged the disclaimer regs as being unconstitutional under the First Amendment - which they were, under the law at the time. But CU only made one argument against the regs - an express advocacy argument. This was the same line of attack that failed in McConnell and later worked in WRTL.

I'll back up for a minute and discuss an example of constitutional avoidance.
In Crawford v Marion County, the controlling minority opinion used constitutional avoidance to refrain from deciding the merits of the case about whether voter ID is unconstitutional. They held that the specific arguments and record in the case didn't justify ruling for the plaintiffs.
And while I'm strongly opposed to voter ID, the ruling is fairly persuasive.

In Citizens United, this is what they didn't do.
Under the usual constitutional avoidance doctrines, they could have decided more narrowly.
The court overruled, at least as to corporations, perhaps narrrowed is a bettter a term, the holdings in McIntyre and Talley, that disclaimers regulations are unconstitutional, although plaintiffs hadn't argued or briefed these cases and the defendants did not call for these cases to be overruled or narrowed. I had been afraid of a ruling like this, and I had wanted to file an amicus, but it was one of many things I just never got around to doing within the deadlines.
The court, if it had applied its usual constitutional avoidance tools, could have said that plaintiffs waived their broader challenge by not arguing or briefing it, have said that the express advoacy argument doesn't work here, and said that this argument on this record fails, but without foreclosing a future argument on the merits.
I don't have much of a problem with the holding itself - that corporations can be compelled to make disclaimers and file disclosure reports. But I know that the usual crowd of speech suppressors will attempt to use this holding for a more general attack on Talley and McIntyre,
and try to defend the current practice of enforcing unconstitutional disclaimer regulations against little people who dare to speak out about politics. They will argue, with likely success, that qualified immunity attaches when they violate their oaths of office to enforce these unconstitutional rules. With 8-1 to support for overturning or limiting McIntyre, defendants will be emboldened to defend cases all the way up to the Supreme Court.
Taxpayers and foundations such as the Brennan Center will foot the bill.
However, the right cases could limit the damage, or even give Justice Thomas an opportunity to write a majority opinion on this topic. The "Stand by your Ad" provisions of McCain Feingold could easily be the next section to fall. Senator Shumer is already drafting a version of "stand by your ad" directed at corporations. It is likely that the outcome will overreach, and go beyond what the court intended to allow.
In CU, the court went beyond the facts and arguments of the case to announce rules on an issue that really wasn't even before it. When the issue returns to the court with a live case and controversy, the court might reconsider how broadly it ruled in CU.
CU's ruling that corporations can be compelled to make disclaimers might be the next Austin - a case that doesn't fit with the rest of how this court feels about the right to speak out on public affairs.
When I was doing disclaimer cases, I had picked them partly because they were lowhanging fruit - what should have been easy cases of just pointing to McIntyre and Talley. Didn't work out as I hoped. But now, these are tougher cases to try, and will need deeper pockets and bigger guns.
Jim Bopp remains a major player here. The Institute for Justice is becoming a major player - Speech Now is the now case on campaign speech. I might or might not end up partnering with IJ in a West Virginia disclaimer case. Anyway, just wanted to put something down on paper about these thoughts about CU, disclaimers, and anti-avoidance.