The discussion of the details however centered on the fact that Citizens United wanted to make the movie available via video-on-demand services and claimed that this exempted them from the regulation. One of the details of the regulations regarded the number of people the "communication" would reach. The court, rightly in my opinion, rejected the idea that they should get into nit-picking between preferred and non-preferred types of communications and arbitrary determinations of the number of likely receivers of a communication. In response to a third party brief offering an alteration to the existing law they said:
Whether the population and demographic statistics in a proposed viewing area consisted of 50,000 registered voters-but not "infants, pre-teens, or otherwise electorally ineligible recipients"-would be a required determination, subject to judicial challenge and review, in any case where the issue was in doubt. Id. , at 6.
In our view the statute cannot be saved by limiting the reach of 2 U. S. C. §441b through this suggested interpretation. In addition to the costs and burdens of litigation, this result would require a calculation as to the number of people a particular communication is likely to reach, with an inaccurate estimate potentially subjecting the speaker to criminal sanctions.
Note however, that rather than concluding that the existing distinctions and the alternatives offered made no difference to the case at hand they say...
"In our view the statute cannot be saved"
Again, the question before them was not whether "the statute [can] be saved" but rather whether Hillary: The Movie was an electioneering communication covered under the statute. They rightly concluded that it was covered but at the same time ruled on the validity of the statute itself in dismissing an alternative writing of the statute in a third party brief.
They also said, and I couldn't agree more,
The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.
Then again, Citizens United had already produced and distributed their movie thereby exercising their right to discuss the "salient political issues of our day." What is in contention is the funding of that movie and the 30-day restriction prior to the election.
B)
Citizens United next argues that §441b may not be applied to Hillary under the approach taken in WRTL."
WRTL, Wisconsin Right to Life v FEC, is a recent case of the Supreme Court quoted liberally in this case, particularly the words of Roberts and Scalia, as a justification for some of the reasoning applied by the majority (which includes Roberts and Scalia) in this case.
The question there as here is whether the communication in the movie was or was not "express advocacy or its functional equivalent."
As explained by The Chief Justice 's controlling opinion in WRTL , the functional-equivalent test is objective: "a court should find that [a communication] is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Id. , at 469-470.
The majority quickly concludes:
Under this test, Hillary is equivalent to express advocacy. The movie, in essence, is a feature-length negative advertisement that urges viewers to vote against Senator Clinton for President.
After some discussion of the facts of the movie itself this part concludes again:
And the narrator reiterates the movie's message in his closing line: "Finally, before America decides on our next president, voters should need no reminders of ... what's at stake-the well being and prosperity of our nation." Id. , at 144a-145a.
And reiterating their conclusion:
As the District Court found, there is no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton. Under the standard stated in McConnell and further elaborated in WRTL , the film qualifies as the functional equivalent of express advocacy.
C)
Citizens United further contends that §441b should be invalidated as applied to movies shown through video-on-demand, arguing that this delivery system has a lower risk of distorting the political process than do television ads.
This goes directly into ground that argument "A" above wandered into when it delved into the details of what is and is not an "electioneering communication" according to legal definitions.
The court quickly and rightly states:
While some means of communication may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the particular type of message and speaker would raise questions as to the courts' own lawful authority.
To me, that should be that. But then something very strange happens. The majority discussion of this particular claim goes on unnecessarily. The next paragraph opens with this line:
Courts, too, are bound by the First Amendment .
Ya, ok, what's that got to do with the price of tea in China? They never say.
Then they restate what they've already said:
We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.
Aaaah, the next sentence and its follow-up start to build their real case but at the same time unveil the pre-determination of these 5 men to use this case to undermine a centuries worth of popular legislation controlling the undue influence of corporations on the electoral system.
Pre-determination:
It must be noted, moreover, that this undertaking would require substantial litigation over an extended time, all to interpret a law that beyond doubt discloses serious First Amendment flaws.
The problem with the above is that nowhere are these "serious flaws" established, "beyond doubt" or not beyond doubt. The majority asserts this but does not establish it in any way, shape or form.
The beginning of building their real case:
The interpretive process itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable. First Amendment standards, however, "must give the benefit of any doubt to protecting rather than stifling speech."
Note the key word of "chilling." Let's understand clearly what has just happened in this otherwise innocuous rejection of a bad claim.
Citizens United argues that the court should decide that for some reason video-on-demand is different then other media delivery systems and the court should get into the business of "drawing lines" between different technologies (twitter vs. text messages or over the air TV vs. video-on-demand) to distinguish whether they should be regulated as electioneering communication or not. The court rightly and quickly rejects that argument as ridiculous and impractical. The majority then goes on to declare that this ridiculous and rejected argument discloses serious First Amendment flaws in a law that makes no such distinctions. Further they note the "chilling" effect on free speech caused by this rejected argument should it not be rejected even though it was rejected and therefore chills nothing whatsoever.
Strawman anyone?
D)
Citizens United also asks us to carve out an exception to §441b's expenditure ban for nonprofit corporate political speech funded overwhelmingly by individuals. As an alternative to reconsidering Austin , the Government also seems to prefer this approach. This line of analysis, however, would be unavailing.
Here we start to see another weak justification of the 5-man majority. "The government made me do it."
Citizens United's argument is that since only a small amount of their funding comes from corporations they should be exempted from a rule that says "No corporate funding." This is the last of their arguments. It is clearly an "as-applied" argument. The laws ok but it shouldn't apply to me because my funding is only a little bit pregnant. These 5 men respond however by attaching their pre-determination to strike down BCRA/Austin to this obvious as-applied challenge and then attempt to blame the government for making them do it since "... the Government also seems to prefer this approach."
That is some seriously weak argumentation. Either you've got a good argument or you don't. The other guy didn't make you take a particular line of reasoning or force you to reconsider an older case they didn't bring up nor 103 years worth of law that they support. The other other guy didn't ask you to reconsider it either.
Hear that loud rumbling? That's the 5th Armored Division driving through the hole in your argument Justices Kennedy, Roberts, Scalia, Thomas and Alito.
Back to the facts:
In MCFL , the Court found unconstitutional §441b's restrictions on corporate expenditures as applied to nonprofit corporations that were formed for the sole purpose of promoting political ideas, did not engage in business activities, and did not accept contributions from for-profit corporations or labor unions... Citizens United does not qualify for the MCFL exemption, however, since some funds used to make the movie were donations from for-profit corporations.
Pretty cut and dry with a solid conclusion. There is an exception for non-profits solely dedicated to politics with no business activities or money involved. Citizens United does not qualify for the exception. That should be the end of that. But no, the court goes into a rather tortured discussion of optional considerations (once again trying to say the government made me do it) and how none of them work either. They conclude that discussion with this:
Consequently, to hold for Citizens United on this argument, the Court would be required to revise the text of MCFL , sever BCRA's Wellstone Amendment, §441b(c)(6), and ignore the plain text of BCRA's Snowe-Jeffords Amendment, §441b(c)(2). If the Court decided to create a de minimis [minimal] exception to MCFL or the Snowe-Jeffords Amendment, the result would be to allow for-profit corporate general treasury funds to be spent for independent expenditures that support candidates.
Which they follow with the conclusion I brought to light earlier:
There is no principled basis for doing this without rewriting Austin 's holding that the Government can restrict corporate independent expenditures for political speech.
There is in fact no reason for doing it at all since the law makes clear that this particular corporation in this particular action does not qualify for the existing exemption of the applicable law on the books.
Why are we in a discussion of rewriting anything or creating exceptions, de minimis or otherwise, to anything? The law here has not been challenged and you've already decided that it applies to the case at hand. End of subject.
But here we go... the government made me do it argument fleshed out:
Though it is true that the Court should construe statutes as necessary to avoid constitutional questions, the series of steps suggested would be difficult to take in view of the language of the statute. In addition to those difficulties the Government's suggestion is troubling for still another reason. The Government does not say that it agrees with the interpretation it wants us to consider. See Supp. Brief for Appellee 3, n. 1 ("Some courts" have implied a de minimis exception, and "appellant would appear to be covered by these decisions"). Presumably it would find textual difficulties in this approach too. The Government, like any party, can make arguments in the alternative; but it ought to say if there is merit to an alternative proposal instead of merely suggesting it. This is especially true in the context of the First Amendment . As the Government stated, this case "would require a remand" to apply a de minimis standard. Tr. of Oral Arg. 39 (Sept. 9, 2009). Applying this standard would thus require case-by-case determinations. But archetypical political speech would be chilled in the meantime. " ' First Amendment freedoms need breathing space to survive.' " WRTL , supra , at 468-469 (opinion of Roberts , C. J.) (quoting NAACP v. Button , 371 U. S. 415, 433 (1963) ). 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.
Context becomes very important here. We must remember that we are no longer arguing the actual case but are in fact answering the courts question about whether 103 years worth of government regulation of corporate spending in elections should be thrown out or not. I have not read the governments briefs yet but presumably the one before the court changed subjects on them answered this particular claim by Citizens United by pointing out that they do not qualify for the existing exception therefore their claim should be denied end of subject.
Hopefully their second brief answering why the court should or should throw out 103 years worth of the peoples legislation controlling corporate domination of the political process started with something to effect of:
"You shouldn't and there is no reason we should even be discussing this in the first place. Can we go home now?"
Understandably and wisely though they probably went on to give detailed responses to other possibilities suggested either by existing case law or the 40 other briefs or by the questions of the justices themselves in oral argument.
During this they exercised their right to suggest that if the justices were hell bent for leather to attack the existing law that they would rather the court carved out a further minimal exception then remove all restrictions whatsoever. They may not have liked it. They may not have thought it had merit but given that they'd already been backed into a corner by a court with its own agenda they probably figured it wise to put up as many optional defenses as they could in an effort to save our democracy from these 5 men.
So let's go back to the quote above:
Though it is true that the Court should construe statutes as necessary to avoid constitutional questions...
Ok, then why did the court on its own initiative take this case to a constitutional question that wasn't before it and wasn't brought to question during examination of the questions that were before it?
Everything that follows is based on the idea that the court is legitimately considering the constitutionality of the statute at hand. Even then it is a weak argument for overturning existing law.
In addition to those difficulties the Government's suggestion is troubling for still another reason. The Government does not say that it agrees with the interpretation it wants us to consider.
The government made a weak case for this hypothetical alteration of existing law. The government doesn't really seem to think this hypothetical alteration by the court of existing legislation is a very good idea. Ok... then don't do it. Reject the suggestion to create an exception and rule that Citizens United gets no additional exception.
Which they do...
We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned....
but in addition...
... especially if we are convinced that, in the end, this corporation has a constitutional right to speak on this subject.
Note again the use of the loaded word "banned" and the follow-up implication that this corporations right to speak has been denied. Let me say once again, the movie was made, the movie was distributed, the movie was viewed, the speech was made. What is at question is more properly termed as a "restriction" on this movie being distributed even further (video-on-demand and accompanying TV advertisement for it) during a 30-day window before the election and how it was paid for. One can argue the merits of whether such restrictions are valid but so far they have not made that argument. Instead they have claimed that this corporations right to speak has been banned which it quite clearly and obviously... on its face... has not been.
E)
"As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground...."
Let's stop right here for a quick review.
A)
Citizens United contends that §441b does not cover Hillary , as a matter of statutory interpretation, because the film does not qualify as an "electioneering communication." §441b(b)(2)
To which they conclude "Section 441b covers Hillary."
B)
Citizens United next argues that §441b may not be applied to Hillary under the approach taken in WRTL."
To which they conclude:
As the District Court found, there is no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton. Under the standard stated in McConnell and further elaborated in WRTL , the film qualifies as the functional equivalent of express advocacy.
C)
Citizens United further contends that §441b should be invalidated as applied to movies shown through video-on-demand, arguing that this delivery system has a lower risk of distorting the political process than do television ads.
To which they conclude:
While some means of communication may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the particular type of message and speaker would raise questions as to the courts' own lawful authority.
D)
Citizens United also asks us to carve out an exception to §441b's expenditure ban for nonprofit corporate political speech funded overwhelmingly by individuals.
They conclude:
We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned....
E)
"As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground...."
Except... they did resolve them. Citizens United's case was rightly denied by the District Court and the Supreme Court agrees on each issue. The case should end here on page 12 with a unanimous determination.
We should be so lucky.
Part III... the case these 5 men created for themselves... tomorrow. |
