The majority in Citizens United v. Federal Election Commission concluded that § 441b of the Bipartisan Campaign Reform Act was facially unconstitutional, ___ U.S. ___, 130 S. Ct. 876 (2010), but the majority overreached its authority. The majority declared § 441b facially unconstitutional despite the fact that Citizens United chose to attack § 441b only as-applied. How does the Court rationalize its authority to answer a question that it was not asked, and is the Court ultimately correct?
First, the Court concludes that it has authority to answer the question because it was answered by the District Court below. Id. at 892. But this reason cannot stand alone because it raises a circular problem; if the only reason that the Supreme Court has authority is because the lower court addressed the question, then the lower court must have erred in addressing the question in the first instance.
Second, the Court concludes that it has authority because it was asked to answer whether the statute violates the First Amendment, and it is irrelevant whether the basis is facial or as-applied because “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Id. at 893 (citing Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995) (emphasis added)). The Court overlooks the fact that Citizens United, the party, in fact did not decide to address the facial validity of the statute on appeal – the Court did. The Court thus must have a claim to authority elsewhere.
Finally, the Court concludes that the distinction between facial challenges and as-applied challenges need not always control the [1] pleadings and [2] disposition in every case involving a constitutional challenge. Id. at 893. Surely the Court did not consider the facial validity of the statute on the basis of preserving the pleadings because this case was decided on summary judgment, not a motion to dismiss. Id. at 888. With respect to dispositions, the Court defends its conclusion, but it limits its reasoning in a significant way. It argues that the distinction cannot control dispositions “if those remedies are necessary to resolve a claim [here, an as-applied challenge] that has been preserved.” Id. By so limiting the scope of its authority to raise the question, the Court’s last arguable independent basis for authority turns upon whether it is necessary for the Court to test the facial validity of the statute in order to reach its conclusion.
The Court answers yes. Its conclusion is based upon a central premise: the First Amendment rights at stake are greatly affected because “[i]t is well known that the public begins to concentrate on elections only in the weeks immediately before they are held. There are short timeframes in which speech can have influence. . . . The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others.” Id. at 895. This premise is the crux of the Court’s authority to address the statute’s facial validity, and if we are forced to accept this premise, it fully justifies the Court’s claim to authority. The Court is right; an as-applied attack on the statute would fail miserably under this premise because a movie, such as Hillary, is far from a reaction to messages conveyed by others “in the heat of political campaigns” within the thirty days prior to an election. Movies require months or years to produce, not days. It would be necessary to challenge the statute facially because the premise is simply inapplicable to electioneering movies like Hillary.
But the premise upon which the Court’s decision hinges is troubling. The Court completely fails to cite any sources to support its facts about the nature of U.S. elections. First, is it well known that the public begins to concentrate on elections only in the weeks immediately before they are held? The mere suggestion belies our perception that elections drag on seemingly forever. Equally persuasive is the view that elections are settled long before the last month.
Second, is the decision to speak made in the heat of political campaigns, when speakers react to one another? Although quick quips occasionally gather press attention, it is a long-term strategy that influences the shape of elections. Speech “in the heat of political campaigns” are thus not, as the majority seems to suggest, of the highest order of speech.
Finally, must the speaker in fact engage in a protracted lawsuit before speaking? Citizens United certainly did have the right to fund this political speech – in the form of a political action committee (“PAC”). The majority dismisses PACs as too onerous a burden because PACs are subject to regulation before they may speak.
But is it really too onerous? Under Austin and McConnell, which the majority vehemently loathes, Corporations had a constitutionally protected right to engage in the dialogue of issues as freely as they wished. See Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). That is the real substance of protected political speech; it is the protection of ideas, not parties, that the Framers were concerned with (having not yet foreseen the specter of political parties). By confusing the right to the unrestrained exchange of ideas with unrestrained endorsement of candidates by profit-making machines, the Court, without citing any persuasive authorities about the nature of U.S. elections, wholly ignores the only fact that has been settled by legislative findings – that the fidelity of the election process is threatened by the excess comingling of money with individual candidates.
The Court thus oversteps its authority on review because it relied upon a flawed premise in concluding that a facial review was necessary to the disposition of this case. Accordingly, the Court lacks any sustainable grounds upon which to claim authority to challenge the facial validity of the statute.
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