| Justice Kennedy's majority opinion is incredibly weak. My comments about my background in logic are driven by reading a 57-page opinion that could have been more concisely written in about 5 pages had all the "baffle'm with bullshit" been removed. On the grounds of logical reasoning alone his paper deserves a grade of "D"... and that's being generous.
It is clear from reading the argument of the majority that they believed themselves to be on un-firm ground and therefore needed to bolster their argument with as much fodder (feel free to reference a thesaurus to find similar terms with which to substitute) as they could to cover the weakness of their primary positions.
Brief Summary of the actual case:
Citizens United is a non profit corporation that, in Jan. 2008, released a short film called "Hillary: The Movie" which detailed many of the right wing claims against Hillary Clinton. They are funded in part by individuals and in part by other corporate money. As such they were restricted from airing the film during the 30 day window prior to the election. They brought suit. It went through various legal procedures which I am not particularly familiar with and eventually ended up in the Supreme Courts lap.
Primary issue: Government regulations prohibiting corporate money used to advocate for or against a particular candidate in a certain time frame prior to an election.
The Supreme Court is supposedly reluctant to overrule Congress and extends deference to the legislative branch when considering the constitutionality of a law. They are also reluctant, supposedly, to overrule themselves, i.e. a prior Supreme Court's decision. They, and all courts, follow precedent as much as actual written law. They also have different levels of scrutiny they apply to laws depending on what constitutional provisions are implicated by them. Free Speech, rightly, is one that requires intense scrutiny.
Kennedy's Opinion:
One of the first things noticeable in Kennedy's opinion is the use of words and phrases that indicate either a bias or a pre-determined decision. In the very first paragraph the use of the word "banned" stood out.
"Austin [prior Supreme Court case] had held that political speech may be banned based on the speaker's corporate identity."
A central issue in this case is the Supreme Courts handling of it. The second paragraph opens with the statement:
"In this case we are asked to reconsider Austin and, in effect, McConnell [another prior SCOTUS case].
As it turns out this is not true. The case before the court did not ask the Court to reconsider Austin. In fact, the Court asked the litigants to come back to court at a later date and address Austin.
In the actual case:
Citizens United sought declaratory and injunctive relief against the FEC. It argued that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA's [Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold] disclaimer and disclosure requirements, BCRA §§201 and 311, are unconstitutional as applied to Hillary and to the three ads for the movie.
They lost on all counts. In particular the District Court found §441b constitutional both facially and as-applied. The distinction here is important. Think of "facially" being the theory of the law and as-applied being the specific application of the law in this case. You could have a law that is perfectly constitutional but applied in an unfair manner or you could have a law applied properly and fairly to all but that is inherently unconstitutional.
The Supreme Court decided to take up the case and then "... asked the parties to file supplemental briefs addressing whether we should overrule either or both Austin and the part of McConnell which addresses the facial validity of 2 U.S.C. §441b."
As discussed a couple places later in the SCOTUS decision...
(from Justice Stevens dissent)
"In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203... In its motion for summary judgment, however, Citizens United expressly abandoned its facial challenge... and the parties stipulated to the dismissal of that claim.... The District Court therefore resolved the case on alternative grounds, 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."
In other words they originally claimed that 203 was unconstitutional on its face but part way through the original court hearing they abandoned that claim which ended that as an issue. The district court then made its decision based on the remaining issues and not on that one as it was no longer in dispute in the case.
After losing the remainder of their case at the District Court level they asked the Supreme Court to take jurisdiction over the case and stated their reasons. What they asked the Supreme Court to consider was whether the law was properly applied to them and not whether it was constitutional on its face.
In taking the case to the Supreme Court they filed what is called a "Jurisdictional Statement." This statement is their case for requesting that the Supreme Court take jurisdiction in the matter and later decide on the issues presented. In the Jurisdictional Statement Citizens United describes how they believe they have been wronged and what it is they want the Supreme Court to consider and decide upon.
Courts do not decide on issues not brought before them. If I slap you across the face and you do not go to the police and the police do not take it before a Judge that Judge does not go off by themself and send me to jail for assault. They have no jurisdiction over issues not properly brought before them.
On page 14 they lay out their case in the section titled:
"Statement of the Case
This is an as-applied challenge to the constitutionality of (a) BCRA § 201, 116 Stat. 88 (titled "Disclosure of Electioneering Communications"), which added a new subsection "(f)" to § 304 of the Federal Election Campaign Act ("FECA") that requires reporting of
electioneering communications, (b) BCRA § 311, 116 Stat. 105, requiring that electioneering communications contain "disclaimers," see 11 C.F.R. § 110.11, and
(c) BCRA § 203, 116 Stat. 91, prohibiting corporations from funding electioneering communications. BCRA § 201 is called herein the "Reporting Requirement,"
BCRA § 311 is called the "Disclaimer Requirement," and the requirements together are called the "Disclosure Requirements" for ease of identification. BCRA § 203 is called herein the "Prohibition." The Reporting Requirement is codified at 2 U.S.C. § 434(f). App. 24a. The Disclaimer Requirement is codified at 2 U.S.C. § 441d(a). App. 30a. The Prohibition is codified at 2 U.S.C. § 441b. App 28a.
Key phrase:
"This is an as-applied challenge...."
To paraphrase, this is an as-applied challenge to BCRA section 201, the Reporting Requirement, section 311, the Disclaimer Requirement, and section 203, the Prohibition.
To clarify an important point here, section 203 of BCRA, what they call "the Prohibition" and what the majority later calls "the ban," is in the formal US Code of Law at 441b. For all intents and purposes you can think of these two things as the same when you read them here.
Let's recap quickly... Citizens United approached the Supreme Court with a specific request to rule on an as-applied challenge to 3 sections of the law. In other words...
"Did they do me wrong in their application of these laws to me in my specific situation?"
They do not say to the Supreme Court...
"These laws are unconstitutional in any and all circumstances and we want to you to rule that they ought to be thrown out."
The court agreed to hear the case. Citizens United and the FEC filed their briefs. Other organizations and individuals, including Senators McCain and Feingold, also filed briefs. There were a total of about 20 briefs filed.
The Supreme Court then issued its response in the case in an order dated, June, 29, 2009:
This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494.U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002. 2 U.S.C. §441b.
Key phrase:
"... which addresses the facial validity of Section 203...."
You and your friend come to my store to buy a piece of bubblegum with a price tag of 5 cents. I charge the friend 5 cents and I charge you $5. You go to court and tell the Judge that I applied the wrong price to you specifically and ask that the court order to me charge you only 5 cents.
The Judge responds by asking you and me to come back and address why any stores, anywhere at any time should be allowed to exist in the first place.
You and I look at each other with raised eyebrows and say, "Huh?"
What followed were another 40 some briefs from everyone and their brother. The final result was this ruling.
Before getting into the decision itself I address this issue because it makes clear the completely political nature of this decision. The Court ruled on an issue not brought before it, an issue not in dispute.
Let's go back to the first sentence of the second paragraph of Justice Kennedy's opinion for the majority:
"In this case we are asked to reconsider Austin and, in effect, McConnell.
No. The court all by their themselves decided to do that.
I slap you across the face. You go to the police. The police take me before a Judge. The Judge rules that Mark McGwire's homerun records can't stand because he cheated with steroids.
You can agree or disagree about whether McGwire's homerun records are valid or not but it has nothing to do with the issue the Judge has in front of him.
Sadly, this calls the legitimacy of the Court into question. This is not the first time it has happened (see Bush v. Gore, Lochner v. New York, etc) but it is a very clear case of 5 unelected and unaccountable Justices of the Supreme Court making political decisions that effect the entire nation rather than performing their sole duty of making judicial decisions on the specific issues brought before them for adjudication. A great deal of their subsequent argument is their weak attempt to justify this politicizing of the court rather than ruling on the actual case at hand.
This abuse of power by 5 unelected men to force their own economic views on the nation (see Lochner v. New York) is enough to make this one of the worst decisions in the history of the court before we even consider the ramifications of the actual decision. And make no mistake. This was an economic decision in favor of unbridled corporate power over the people of this nation however nicely they may have attempted to clothe it in Free Speech and Freedom of Association terms.
Geez. I haven't gotten past the second paragraph and already it's a travesty that an average non-constitutional-lawyer such as myself can rip to shreds.
Kennedy concludes that paragraph by saying:
"The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether."
I am all in favor of saying that the government may not suppress speech altogether. However, unless he supports the assertion below there is nothing so far showing that the government was suppressing speech altogether. The movie was created, it exists, you can watch it if you want, and the government at no time and in no place banned the movie. You could see it as easily the day before the ruling as you can today. This statement reads like the first of many strawmen.
Kennedy goes on to describe the case at hand. I won't reiterate but will pick out a couple interesting points.
"Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited-and still does prohibit-corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections. 2 U. S. C. §441b"
Further describing the law under BCRA:
Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a "separate segregated fund" (known as a political action committee, or PAC) for these purposes. 2 U. S. C. §441b(b)(2). The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union.
This would seem to indicate that corporate speech is allowed for in this manner making the terms "prohibition" (used by Citizens United), "banned" (used by the 5-man majority), and "suppress" (also used by the 5-man majority) inaccurate.
Next paragraph down Kennedy acknowledges the facts of Citizens United's actual claims:
It argued that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA's disclaimer and disclosure requirements, BCRA §§201 and 311, are unconstitutional as applied to Hillary and to the three ads for the movie.
(bolding emphasis mine)
He concludes this section by acknowledging that the Supreme Court "asked the parties to file supplemental briefs addressing whether we should overrule either or both Austin and the part of McConnell which addresses the facial validity of 2 U. S. C. §441b. See 557 U. S. ___ (2009)."
Section II opens by stating what proper procedure ought to be
Before considering whether Austin should be overruled, we first address whether Citizens United's claim that §441b cannot be applied to Hillary may be resolved on other, narrower grounds.
Theoretically the Supreme Court attempts to avoid constitutional issues if they can in the belief that this makes for more stable government. They therefore attempt to decide cases on narrow grounds rather than by broad proclamations on grand, sweeping constitutional issues. Much of what fills Kennedy's 57 pages and virtually all of Roberts subsequent opinion are an attempt to justify making a grand, sweeping proclamation on an issue not brought before them thereby disrupting a century of settled law and electoral procedures across all 50 states instead of deciding the narrow, as-applied case they were actually presented.
In the majorities defense let me say that the court ought to give proper consideration to every defense presented to it. In other words, just because court procedure states that they should avoid constitutional issues by deciding on narrower grounds doesn't mean that they shouldn't consider those wider grounds at all. The proper procedure then is to start with the narrowest grounds and work your way wider and wider until all avenues of investigation are exhausted. This gives the appearance on the one hand of the court trying to find a way to justify Citizens United's claims anyway they can but is in fact a proper method for giving a defendant every possible consideration before finding them guilty of a crime. Fair and impartial Judge's will be properly guided by this procedure. Those who have already reached their own decision and are searching for a way to justify it however can easily abuse this process.
Hence statements by the majority such as...
There is no principled basis for doing this without rewriting Austin 's holding that the Government can restrict corporate independent expenditures for political speech.
And
We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned, especially if we are convinced that, in the end, this corporation has a constitutional right to speak on this subject.
And
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. 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 .
... become highly suspect and sound like rationalizations for bad behavior more than sound reasoning for fair determination... "especially if we are convinced that, in the end [or do they mean "in the beginning?"], this corporation has a constitutional right to speak on this subject."
How did we get here or addressing the specific claims tomorrow.... |
