Welcome to the Oligarchy - The Roberts Court Tears Down the Facade: Wealth Controls Politics

Anyone who has been paying attention has long known that money and power go hand-in-hand in American politics. The wealthy 1% control who gets elected to the highest offices and who does not. Never before has this been more blatantly obvious than in the Roberts Court decision on the McCutcheon v. FEC case.

First there was Citizens United, which allows corporations the same rights as citizens in making donations to political campaigns, and now we have the Supreme Court of the United States of America deciding, in opposition to nearly 40 years of existing case law, that there should be no real constraints on campaign contributions for individuals. So corporations have the same rights as citizens in campaign contributions, and now wealthy citizens are permitted to make a $3.2 million aggregate contribution in each election cycle.

So much for democracy. Welcome to the Oligarchy.

From Bill Moyers' website, here are some excerpts of the minority dissent, penned by Justice Stephen Breyer. [Below that, there is an excellent list of links from the SCOTUS blog on this case, all of which are written by legal scholars.]

The court’s four-member minority issued a blistering dissent, written by Justice Stephen Breyer. He charged that the majority’s “conclusion rests upon its own, not a record-based, view of the facts.”

Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.

Taken together with Citizens United, Breyer writes that McCutcheon “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

He goes on to dissect the claims on which the court’s ruling rest. He first takes issue with the idea that the government only has an interest in preventing a direct exchange of cash for votes.

In the plurality’s view, a federal statute could not prevent an individual from writing a million dollar check to a political party (by donating to its various committees), because the rationale for any limit would “dangerously broade[n] the circumscribed definition of quid pro quo corruption articulated in our prior cases.”

This critically important definition of “corruption” is inconsistent with the Court’s prior case … and it misunderstands the constitutional importance of the interests at stake. In fact, constitutional interests—indeed, First Amendment interests—lie on both sides of the legal equation.

In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself.

Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives….

The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.

What has this to do with corruption? It has everything to do with corruption. Corruption breaks the constitution­ally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ concern that a few large donations not drown out the voices of the many….

The “appearance of corruption” can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.

Breyer then wonders how the conservatives could square McCutcheon’s narrow definition of “corruption” with its conclusion, in the 2003 case McConnell v. FEC, that money — and the access it purchases — has a pernicious influence on the political process.

The Court in McConnell upheld these new contribution restrictions under the First Amendment for the very reason the plurality today discounts or ignores. Namely, the Court found they thwarted a significant risk of corruption—understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives.

In reaching its conclusion in McConnell, the Court relied upon a vast record compiled in the District Court. That record consisted of over 100,000 pages of material and included testimony from more than 200 witnesses. What it showed, in detail, was the web of relationships and understandings among parties, candidates, and large donors that underlies privileged access and influence. The District Judges in McConnell made clear that the record did “not contain any evidence of bribery or vote buying in exchange for donations of nonfederal money.”

Indeed, no one had identified a “single discrete instance of quid pro quo corruption” due to soft money. But what the record did demonstrate was that enormous soft money contributions, ranging between $1 million and $5 million among the largest donors, enabled wealthy contributors to gain disproportionate “access to federal lawmakers” and the ability to “influenc[e] legislation.”

“We specifically rejected efforts to define ‘corruption’ in ways similar to those the plurality today accepts,” writes Breyer.

He then takes on the conservatives’ second rationale: that the problem the aggregate limit was supposed to address — huge donors funneling money indirectly to a candidate in order to get around the limit on contributions to a single campaign — isn’t an issue today.

The plurality is wrong…. In the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates, producing precisely the kind of “corruption” or “appearance of corruption” that previously led the Court to hold aggregate limits constitutional. Those opportunities for circumvention will also produce the type of corruption that concerns the plurality today. The methods for using today’s opinion to evade the law’s individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers.

He offers three concrete examples of how a wealthy donor might be able to get millions of dollars to a single candidate without running afoul of the law under McCutcheon.

But perhaps the dissent’s most withering criticism of the ruling is that, as in Citizens United, it was decided according to the majority’s beliefs, rather than the factual record.

In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed below to determine whether the law served a compelling governmental objec­tive. And, typically, that record contained testimony from Members of Congress (or state legislators) explaining why Congress (or the legislature) acted as it did….

If we are to overturn an act of Congress here, we should do so on the basis of a similar record….

Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and applying significant discretion and judgment. To what ex­tent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it?

… For another thing, a comparison of the plurality’s opinion with this dissent reveals important differences of opinion on fact-related matters. We disagree, for example, on the possibilities for circumvention of the base limits in the absence of aggregate limits. We disagree about how effectively the plurality’s “alternatives” could prevent evasion. An evidentiary proceeding would permit the parties to explore these matters, and it would permit the courts to reach a more accurate judgment. The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one.” But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental interest—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy….

The justification for aggregate contribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself. The threat to that integrity posed by the risk of special access and influence remains real. Part III, supra. Even taking the plurality on its own terms and considering solely the threat of quid pro quo corruption (i.e., money-for-votes exchanges), the aggregate limits are a necessary tool to stop circumvention. And there is no basis for finding a lack of “fit” between the threat and the means used to combat it, namely the aggregate limits.

The plurality reaches the opposite conclusion. The result, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.

For even more coverage of this decision, and from legal scholars, here is a list of links to posts on the SCOTUS blog related to this case.

McCutcheon v. Federal Election Commission

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
12-536	D.D.C	Oct 8, 2013 Tr.Aud.	Apr 2, 2014	5-4	Roberts	OT 2013

Issue: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

SCOTUSblog Coverage

• Symposium: Welcome to Oligarchs United
• Symposium: The First Amendment’s protection of political speech extends to both donations and spending
• Symposium: Does the Chief Justice not understand politics, or does he understand it all too well?
• Foreword: It’s all forward now
• Divided Court strikes down campaign contribution caps: In Plain English
• Opinion analysis: Freeing more political money
• A civil day on the bench for opinions on the impolite world of campaign finance
• The ACLU & the McCutcheon case
• Book excerpt: Before McCutcheon – The ACLU position in the early years
• The Chief Justice looks for a compromise on contribution caps? This morning's argument in Plain English
• Argument recap: How is political influence bought?
• Court returns to campaign finance reform: Tomorrow's oral argument in Plain English
• Argument preview: Campaign finance -- again
• Symposium: Voters and contributors
• Symposium: Aggregate limits and the fight over frame
• Symposium: McCutcheon v. FEC and the fork in the road
• Originalism: It’s not just for conservatives anymore
• Burning the house to roast the pig: Can elections be saved by banning political speech?
• Symposium: The distinction between contribution limits and expenditure limits
• Symposium: McCutcheon v. Federal Election Commission
• Symposium announcement
• GOP seeks more donor freedom
• Campaign donation issue reopened

"Dollarocracy" - US Elections Are Controlled, Predictable Enterprises - John Nichols & Robert W. McChesney | Authors at Google

Political journalist John Nichols and media critic Robert W. McChesney are the authors of Dollarocracy: How the Money and Media Election Complex is Destroying America, a book that outlines the many and varied ways that unregulated spending on elections are the end of democracy.

The unprecedented tidal wave of unaccountable money flooding the electoral system makes a mockery of political equality in the voting booth. The determination of media companies to cash in on that mockery, especially by selling ad time at a premium to the campaigns—when they should instead be exposing and opposing it—completes a vicious circle. What has emerged, argue Nichols and McChesney, is a “money-and-media election complex.” This complex is built on a set of commercial and institutional relationships connecting wealthy donors, corporations, lobbyists, politicians, coin-operated “think tanks,” beltway pundits, and now super-PACS. These relationships are not just eviscerating democratic elections, they are benefitting by that evisceration.

With groundbreaking new research and reporting, Dollarocracy concludes that the money-and-media election complex does not just endanger electoral politics; it poses a challenge to the DNA of American democracy itself.

Sadly true . . . and not likely to change any time soon.

"Dollarocracy" - John Nichols & Robert W. McChesney | Authors at Google

Published on Oct 29, 2013


Fresh from the first $10 billion election campaign, two award-winning authors show how unbridled campaign spending defines our politics and, failing a dramatic intervention, signals the end of our democracy.

Blending vivid reporting from the 2012 campaign trail and deep perspective from decades covering American and international media and politics, political journalist John Nichols and media critic Robert W. McChesney explain how US elections are becoming controlled, predictable enterprises that are managed by a new class of consultants who wield millions of dollars and define our politics as never before. As the money gets bigger—especially after the Citizens United ruling—and journalism, a core check and balance on the government, declines, American citizens are in danger of becoming less informed and more open to manipulation. With groundbreaking behind-the-scenes reporting and staggering new research on "the money power," Dollarocracy shows that this new power does not just endanger electoral politics; it is a challenge to the DNA of American democracy itself.

On Anniversary of Citizens United, Group Says Occupy the Courts

From Common Dreams . . . . I'm not sure that there is much we can do about the Citizen's United decision. We need Congress to overturn the decision with legislation, and they will NEVER do that (they are the only people who benefit from the decision). The Court will not - and probably is not able to - reverse their own decision in the absence of a case that justifies the reversal.

On Anniversary of Citizens United, Group Says Occupy the Courts

“Corporate personhood and money equals political speech are court-created doctrines"

- Common Dreams staff

The coalition Move to Amend has called for a day of action today to occupy federal courthouses across the country, including the U.S. Supreme Court, to mark the second anniversary of the Citizens United vs. FEC ruling.

 

CNN reports on the timing of the action:

The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say.

The 2010 ruling made it legal for groups to raise and spend unlimited amounts of money for a candidate, as long as the group does not coordinate with the candidate or contributed directly to his or her campaign.

It allowed for the rise of Super PACs, which can raise unlimited funds from corporations.

Politico reports:

“Why the courts? Because frankly folks, that’s the scene of the crime,” said David Cobb, an organizer of Friday’s protests. “Corporate personhood and money equals political speech are court-created doctrines. We the people never decided it; our elected representatives didn’t decide it; ordinary people like me and you never decided it. The court created these doctrines and it’s going to take a movement to overturn it.”

One tweeter's picture this morning shows barricades going up around the Supreme Court building.

Complete Text of Justice Stevens' Dissent on Citizens United v. Federal Election Commission

I am certainly no expert on Constitutional Law, although one of my current training clients is (and we have discussed this, so I know I am not totally out in left field), but I am absolutely sure that the framers of the Constitution never envisioned "personhood" for corporations. Hell, I doubt they envisioned corporations at all.

I find it interesting that there were so many opinions in favor of the ruling, each claiming an originalist stance. It seems that all but Justice Kennedy's official opinion were in rebuttal to Justice Stevens' brilliant and fierce dissent.

In my view, corporations are NOT people, therefore are NOT citizens, and therefore do NOT have First Amendment protections.

Further, the ruling closed all loop-holes to challenging the money=speech theory, which the Court no doubt planned in making this case more broad (of their own accord) than the plaintiff had presented it.

What's more, this ruling opens up a whole series of regulatory issues. If corporations have personhood under the First Amendment, do they under the Second (can they build their own armed militias?), or under the Fifth (do they have the right to refuse to disclose evidence under FTC investigations that might incriminate them?). The list of potential issues can go on for pages.

Here is the beginning of his dissent, which was signed onto by the other three "liberal" Justices, who issued no separate opinions despite their own dissents from Stevens' position. [Added emphasis is mine.]

Complete Text of Justice Stevens' Dissent on Citizens United v. Federal Election Commission

Justice Stevens, with whom Justice Ginsburg , Justice Breyer, and Justice Sotomayor join, concurring in part and dissenting in part.

The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante , at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The majority’s approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm. , 459 U. S. 197, 209 (1982) (NRWC) , and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id. , at 209–210. The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990) . Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life , Inc., 551 U. S. 449 (2007) (WRTL) , McConnell v. FEC , 540 U. S. 93 (2003) , FEC v. Beaumont , 539 U. S. 146 (2003) , FEC v. Massachusetts Citizens for Life , Inc., 479 U. S. 238 (1986) (MCFL) , NRWC , 459 U. S. 197 , and California Medical Assn. v. FEC , 453 U. S. 182 (1981) .

In his landmark concurrence in Ashwander v. TVA , 297 U. S. 288, 346 (1936) , Justice Brandeis stressed the importance of adhering to rules the Court has “developed … for its own governance” when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall review the background of this case in some detail before explaining why the Court’s analysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudence more generally . 1 I regret the length of what follows, but the importance and novelty of the Court’s opinion require a full response. Although I concur in the Court’s decision to sustain BCRA’s disclosure provisions and join Part IV of its opinion, I emphatically dissent from its principal holding.

I

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell , it is important to explain why the Court should not be deciding that question.

Scope of the Case

The first reason is that the question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. 2 Our colleagues’ suggestion that “we are asked to reconsider Austin and, in effect, McConnell ,” ante , at 1, would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases.

In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a–24a. In its motion for summary judgment, however, Citizens United expressly abandoned its facial challenge, 1:07–cv–2240–RCL–RWR, Docket Entry No. 52, pp. 1–2 (May 16, 2008), and the parties stipulated to the dismissal of that claim, id. , Nos. 53 (May 22, 2008), 54 (May 23, 2008), App. 6a. The District Court therefore resolved the case on alternative grounds, 3 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.” Juris. Statement 5. The jurisdictional statement never so much as cited Austin , the key case the majority today overrules. And not one of the questions presented suggested that Citizens United was surreptitiously raising the facial challenge to §203 that it previously agreed to dismiss. In fact, not one of those questions raised an issue based on Citizens United’s corporate status. Juris. Statement (i). Moreover, even in its merits briefing, when Citizens United injected its request to overrule Austin , it never sought a declaration that §203 was facially unconstitutional as to all corporations and unions; instead it argued only that the statute could not be applied to it because it was “funded overwhelmingly by individuals.” Brief for Appellant 29; see also id., at 10, 12, 16, 28 (affirming “as applied” character of challenge to §203); Tr. of Oral Arg. 4–9 (Mar. 24, 2009) (counsel for Citizens United conceding that §203 could be applied to General Motors); id., at 55 (counsel for Citizens United stating that “we accept the Court’s decision in Wisconsin Right to Life ”).

“ ‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,’ ” Youakim v. Miller , 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States , 274 U. S. 195, 200 (1927) ), and it is “only in the most exceptional cases” that we will consider issues outside the questions presented, Stone v. Powell , 428 U. S. 465, 481, n. 15 (1976) . The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any. That is unsurprising, for none exists.

Setting the case for reargument was a constructive step, but it did not cure this fundamental problem. Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.

As-Applied and Facial Challenges

This Court has repeatedly emphasized in recent years that “(f)acial challenges are disfavored.” Washington State Grange v. Washington State Republican Party , 552 U. S. 442, 450 (2008) ; see also Ayotte v. Planned Parenthood of Northern New Eng. , 546 U. S. 320, 329 (2006) (“(T)he ‘normal rule’ is that ‘partial, rather than facial, invalidation is the required course,’ such that a ‘statute may … be declared invalid to the extent that it reaches too far, but otherwise left intact’ ” (quoting Brockett v. Spokane Arcades, Inc. , 472 U. S. 491, 504 (1985) ; alteration in original)). By declaring §203 facially unconstitutional, our colleagues have turned an as-applied challenge into a facial challenge, in defiance of this principle.

This is not merely a technical defect in the Court’s decision. The unnecessary resort to a facial inquiry “run(s) contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Washington State Grange , 552 U. S., at 450 (internal quotation marks omitted). Scanting that principle “threaten(s) to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Id., at 451. These concerns are heightened when judges overrule settled doctrine upon which the legislature has relied. The Court operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.

The problem goes still deeper, for the Court does all of this on the basis of pure speculation. Had Citizens United maintained a facial challenge, and thus argued that there are virtually no circumstances in which BCRA §203 can be applied constitutionally, the parties could have developed, through the normal process of litigation, a record about the actual effects of §203, its actual burdens and its actual benefits, on all manner of corporations and unions. 4 “Claims of facial invalidity often rest on speculation,” and consequently “raise the risk of premature interpretation of statutes on the basis of factually barebones records.” Id., at 450 (internal quotation marks omitted). In this case, the record is not simply incomplete or unsatisfactory; it is nonexistent. Congress crafted BCRA in response to a virtual mountain of research on the corruption that previous legislation had failed to avert. The Court now negates Congress’ efforts without a shred of evidence on how §203 or its state-law counterparts have been affecting any entity other than Citizens United. 5

Faced with this gaping empirical hole, the majority throws up its hands. Were we to confine our inquiry to Citizens United’s as-applied challenge, it protests, we would commence an “extended” process of “draw(ing), and then redraw(ing), constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” Ante , at 9. While tacitly acknowledging that some applications of §203 might be found constitutional, the majority thus posits a future in which novel First Amendment standards must be devised on an ad hoc basis, and then leaps from this unfounded prediction to the unfounded conclusion that such complexity counsels the abandonment of all normal restraint. Yet it is a pervasive feature of regulatory systems that unanticipated events, such as new technologies, may raise some unanticipated difficulties at the margins. The fluid nature of electioneering communications does not make this case special. The fact that a Court can hypothesize situations in which a statute might, at some point down the line, pose some unforeseen as-applied problems, does not come close to meeting the standard for a facial challenge. 6

The majority proposes several other justifications for the sweep of its ruling. It suggests that a facial ruling is necessary because, if the Court were to continue on its normal course of resolving as-applied challenges as they present themselves, that process would itself run afoul of the First Amendment . See, e.g., ante , at 9 (as-applied review process “would raise questions as to the courts’ own lawful authority”); ibid. (“Courts, too, are bound by the First Amendment ”). This suggestion is perplexing. Our colleagues elsewhere trumpet “our duty ‘to say what the law is,’ ” even when our predecessors on the bench and our counterparts in Congress have interpreted the law differently. Ante , at 49 (quoting Marbury v. Madison , 1 Cranch 137, 177 (1803)). We do not typically say what the law is not as a hedge against future judicial error. The possibility that later courts will misapply a constitutional provision does not give us a basis for pretermitting litigation relating to that provision. 7

The majority suggests that a facial ruling is necessary because anything less would chill too much protected speech. See ante , at 9–10, 12, 16–20. In addition to begging the question what types of corporate spending are constitutionally protected and to what extent, this claim rests on the assertion that some significant number of corporations have been cowed into quiescence by FEC “ ‘censor(ship).’ ” Ante , at 18–19. That assertion is unsubstantiated, and it is hard to square with practical experience. It is particularly hard to square with the legal landscape following WRTL , which held that a corporate communication could be regulated under §203 only if it was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” 551 U. S., at 470 (opinion of Roberts, C. J .) (emphasis added). The whole point of this test was to make §203 as simple and speech-protective as possible. The Court does not explain how, in the span of a single election cycle, it has determined The Chief Justice ’s project to be a failure. In this respect, too, the majority’s critique of line-drawing collapses into a critique of the as-applied review method generally. 8

The majority suggests that, even though it expressly dismissed its facial challenge, Citizens United nevertheless preserved it—not as a freestanding “claim,” but as a potential argument in support of “a claim that the FEC has violated its First Amendment right to free speech.” Ante , at 13; see also ante , at 4 ( Roberts, C. J ., concurring) (describing Citizens United’s claim as: “(T)he Act violates the First Amendment ”). By this novel logic, virtually any submission could be reconceptualized as “a claim that the Government has violated my rights,” and it would then be available to the Court to entertain any conceivable issue that might be relevant to that claim’s disposition. Not only the as-applied/facial distinction, but the basic relationship between litigants and courts, would be upended if the latter had free rein to construe the former’s claims at such high levels of generality. There would be no need for plaintiffs to argue their case; they could just cite the constitutional provisions they think relevant, and leave the rest to us. 9

Finally, the majority suggests that though the scope of Citizens United’s claim may be narrow, a facial ruling is necessary as a matter of remedy. Relying on a law review article, it asserts that Citizens United’s dismissal of the facial challenge does not prevent us “ ‘from making broader pronouncements of invalidity in properly “as-applied” cases.’ ” Ante , at 14 (quoting Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000) (hereinafter Fallon)); accord, ante , at 5 (opinion of Roberts, C. J .) (“Regardless whether we label Citizens United’s claim a ‘facial’ or ‘as-applied’ challenge, the consequences of the Court’s decision are the same”). The majority is on firmer conceptual ground here. Yet even if one accepts this part of Professor Fallon’s thesis, one must proceed to ask which as-applied challenges, if successful, will “properly” invite or entail invalidation of the underlying statute. 10 The paradigmatic case is a judicial determination that the legislature acted with an impermissible purpose in enacting a provision, as this carries the necessary implication that all future as-applied challenges to the provision must prevail. See Fallon 1339–1340.

Citizens United’s as-applied challenge was not of this sort. Until this Court ordered reargument, its contention was that BCRA §203 could not lawfully be applied to a feature-length video-on-demand film (such as Hillary ) or to a nonprofit corporation exempt from taxation under 26 U. S. C. §501(c)(4) 11 and funded overwhelmingly by individuals (such as itself). See Brief for Appellant 16–41. Success on either of these claims would not necessarily carry any implications for the validity of §203 as applied to other types of broadcasts, other types of corporations, or unions. It certainly would not invalidate the statute as applied to a large for-profit corporation. See Tr. of Oral Arg. 8, 4 (Mar. 24, 2009) (counsel for Citizens United emphasizing that appellant is “a small, nonprofit organization, which is very much like (an MCFL corporation),” and affirming that its argument “definitely would not be the same” if Hillary were distributed by General Motors). 12 There is no legitimate basis for resurrecting a facial challenge that dropped out of this case 20 months ago.

Narrower Grounds

It is all the more distressing that our colleagues have manufactured a facial challenge, because the parties have advanced numerous ways to resolve the case that would facilitate electioneering by nonprofit advocacy corporations such as Citizens United, without toppling statutes and precedents. Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “(I)f it is not necessary to decide more, it is necessary not to decide more,” PDK Labs., Inc. v. Drug Enforcement Admin. , 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).

Consider just three of the narrower grounds of decision that the majority has bypassed. First, the Court could have ruled, on statutory grounds, that a feature-length film distributed through video-on-demand does not qualify as an “electioneering communication” under §203 of BCRA, 2 U. S. C. §441b. BCRA defines that term to encompass certain communications transmitted by “broadcast, cable, or satellite.” §434(f)(3)(A). When Congress was developing BCRA, the video-on-demand medium was still in its infancy, and legislators were focused on a very different sort of programming: short advertisements run on television or radio. See McConnell , 540 U. S., at 207. The sponsors of BCRA acknowledge that the FEC’s implementing regulations do not clearly apply to video-on-demand transmissions. See Brief for Senator John McCain et al. as Amici Curiae 17–19. In light of this ambiguity, the distinctive characteristics of video-on-demand, and “(t)he elementary rule … that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California , 155 U. S. 648, 657 (1895) , the Court could have reasonably ruled that §203 does not apply to Hillary . 13

Second, the Court could have expanded the MCFL exemption to cover §501(c)(4) nonprofits that accept only a de minimis amount of money from for-profit corporations. Citizens United professes to be such a group: Its brief says it “is funded predominantly by donations from individuals who support (its) ideological message.” Brief for Appellant 5. Numerous Courts of Appeal have held that de minimis business support does not, in itself, remove an otherwise qualifying organization from the ambit of MCFL . 14 This Court could have simply followed their lead. 15

Finally, let us not forget Citizens United’s as-applied constitutional challenge. Precisely because Citizens United looks so much like the MCFL organizations we have exempted from regulation, while a feature-length video-on-demand film looks so unlike the types of electoral advocacy Congress has found deserving of regulation, this challenge is a substantial one. As the appellant’s own arguments show, the Court could have easily limited the breadth of its constitutional holding had it declined to adopt the novel notion that speakers and speech acts must always be treated identically—and always spared expenditures restrictions—in the political realm. Yet the Court nonetheless turns its back on the as-applied review process that has been a staple of campaign finance litigation since Buckley v. Valeo , 424 U. S. 1 (1976) (per curiam) , and that was affirmed and expanded just two Terms ago in WRTL , 551 U. S. 449 .

This brief tour of alternative grounds on which the case could have been decided is not meant to show that any of these grounds is ideal, though each is perfectly “valid,” ante , at 12 (majority opinion). 16 It is meant to show that there were principled, narrower paths that a Court that was serious about judicial restraint could have taken. There was also the straightforward path: applying Austin and McConnell , just as the District Court did in holding that the funding of Citizens United’s film can be regulated under them. The only thing preventing the majority from affirming the District Court, or adopting a narrower ground that would retain Austin , is its disdain for Austin.

Go read the whole dissent.

Tags: law, campaign finance, Supreme Court, Complete Text, Justice Stevens, Dissent, Citizens United v. Federal Election Commission, Constitutional Law, Justice Kennedy, free speech, corporate personhood, First Amendment, money=speech