No decision, but more than a hint in Citizens United

When this morning began, Supreme Court watchers expected the justices would issue their decision in the campaign finance case of Citizens United v. FEC, No. 08-205.  After all, last week, Chief Justice John Roberts had made it clear that this would be the last decision day before the High Court’s traditional summer recess.  But instead of High Court decision, campaign finance aficionados got a big surprise — Citizens United would be held over for re-argument early next September (before the Court’s next term official begins on the first Monday in October, 2009).

Specifically, the justices ordered the “Hillary: The Movie” case to be reargued to address whether “the Court [should] overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002.”  Quite frankly, that’s even bigger news than the decision that was widely expected to come down in favor of Citizens United today.

The re-argument order — explicitly on the issues of whether the Supreme Court should overrule Austin, the part of McConnell that facially upheld McCain-Feingold’s electioneering communications ban, or both — puts the entire campaign finance community on notice that the Citizens United decision to come likely will be big and bold, also likely in an attempt by at least five justices to straighten out what has been a confused area of the High Court’s jurisprudence.

Since being decided in 1990, Austin has been perhaps the biggest part of the confusion.  The Austin decision — which upheld a restriction on the independent expenditure of corporate funds in elections — rests on a governmental interest that has been dismissed consistently in the Court’s other campaign finance decisions — namely, egalitarian fears concerning free speech.

Of course, when Austin reached One First Street, the Supreme Court had already previously ruled that the government could not prohibit individuals (Buckley v. Valeo), or even ideologically-oriented non-profit corporations (Massachusetts Citizens for Life), from making independent expenditures in elections.  But when it came to the Michigan State Chamber of Commerce in Austin, the High Court went a totally different way.

The Court reasoned that prohibiting corporate independent expenditures in support of or opposition to candidates served to prevent “a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”  In other words, the Court decided to treat independent corporate campaign speech different from all other individual campaign speech because “big” corporations could speak louder than others, so the Court had to level the speech playing field.

This was dramatically out of step with the rest of the Court’s campaign finance jurisprudence, which had consistently ruled that equalizing political speech was not only not a compelling state interest, but also was not even legitimate.  Indeed, in the seminal campaign finance decision of Buckley v. Valeo, the Court had made it clear that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”  Discriminating against corporate-funded speech was also out of step with the Supreme Court’s First Amendment jurisprudence more generally, which had held — for instance, in the context of commercial speech — that corporations do not enjoy lesser free speech protections than others.

All of this is to say that if the justices do overrule Austin after Citizens United is re-argued early next fall, it would go a long way to clean up the Supreme Court’s campaign finance jurisprudence, as well as eliminating tensions among the Court’s First Amendment caselaw more generally.

The same can be said for the Supreme Court’s apparent openness to overrule the portion of McConnell v. FEC that facially upheld the prohibition on electioneering communications enacted as a part of the Bipartisan Campaign Reform Act (a.k.a. McCain-Feingold).

Less than four years after the McConnell decision sustained the electioneering communications ban on its face, the Supreme Court dramatically cut back the broad sweep of the statute in order to protect the First Amendment right to “genuine issue advocacy” in FEC v. Wisconsin Right to Life (WRTL II).  Specifically, the controlling opinion of the Court — authored by Chief Justice John Roberts and joined by Justice Samuel Alito — held that McCain-Feingold’s electioneering communications ban could only apply to political “ad[s that are] susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”  Otherwise, the Chief Justice explained, the electioneering communications prohibition would violate the First Amendment by restricting constitutionally protected issue advocacy.

But, like the confusion created by Austin, the Court’s decision in WRTL II has not eliminated uncertainty regarding constitutional protection for issue advocacy, and the boundaries for such First Amendment protection.  In fact, if Citizens United was not evidence enough of this fact, there are any number of FEC enforcement matters under review, advisory opinions, and even court cases that continually raise the question of just where the line is separating protected WRTL II ads from unprotected “functional equivalent of express advocacy” ads.

What’s more, the justices understood back in 2007 that such a fuzzy line would be not only unconscionable but also unconstitutional — with no less than four justices voting for the WRTL II judgment commenting that McConnell‘s ruling upholding the electioneering communications provision on its face either should be overruled right away or when the as-applied standard proved unworkable.  With questions concerning the application of the as-applied WRTL II standard now consistently splitting the FEC, as well as the lower courts, it seems the Supreme Court is tired of taking the wait and see approach, and is — like with Austin — open to cleaning up the mess it created by not drawing a coherent brighter line earlier.

In short, the Supreme Court’s decision ordering the re-argument of Citizens United may have put off a pro-speech anti-regulation decision everyone expected would be announced today.  But the highest court in the land provided far more than a hint that, when it finally gets announced, the decision will likely go farther than everyone may have thought it would in June.

The Center for Competitive Politics is now the Institute for Free Speech.