Wednesday, August 12, 2009

Minimalism, Precedent and Original Understanding in the "Hillary the Movie" Reargument

My latest FindLaw column previews the Supreme Court's upcoming re-argument in Citizens United v. FEC. I argue that the Court should not change its basic approach to the regulation of corporate and union expenditures designed to affect elections. Here I want to make a methodological point to follow up on my post yesterday.

Attitudes towards campaign finance regulation do not break down exactly along the liberal/conservative ideological spectrum. For example, the ACLU has joined with generally conservative groups in opposing the regulation challenged in Citizens United. And both major political parties have, at times, challenged various campaign finance regulations. Meanwhile, good government organizations (like the League of Women Voters or the Brennan Center) tend to favor regulation, as do some conservatives who take a narrow view of the First Amendment in general. All that said, on the current Supreme Court, the Court's most conservative members tend to be the most likely to vote to strike down campaign finance regulation, while its most liberal members tend to vote to uphold such regulation.

And yet, the judicially conservative (as opposed to the ideologically) conservative grounds for overruling Austin v. Michigan Chamber of Commerce and McConnell v. FEC, as proposed in the Court's re-argument order, are quite weak. Three hallmarks of the professed judicial philosophy of CJ Roberts are: 1) A preference for narrow over broad rulings; 2) Respect for precedent; and 3) Constitutional decisions rooted in the original understanding. The argument for overruling fails on all three counts.

First, as I note in my column, there were and still are narrow grounds for finding that the FEC lacked the authority to prevent the airing of "Hillary: The Movie" via video on demand. If the Court is serious about not deciding more than it needs to, it would rely on those grounds rather than broadly re-writing the First Amendment law governing campaign finance.

Second, and most obviously, overturning Austin and/or McConnell would be a departure from precedent--although we can be sure that the Court will dutifully recite the factors that warrant a departure from stare decisis, before overruling.

Third, what about the original understanding? No Justice of the Supreme Court is more committed to originalism or to the proposition that campaign finance regulations violate the First Amendment than is Justice Thomas. And indeed, in his separate opinions in campaign finance cases, Justice Thomas does invoke the original understanding. For example, in Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 411 (2001), Justice Thomas quotes Madison for the following proposition:

The value and efficacy of [the right to elect the members of government] depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively.

And then in a footnote in the same opinion, Justice Thomas quotes Madison for his well-known prescription for curing the ailments of factionalism. But as far as I have been able to ascertain, neither Justice Thomas nor any of the other Justices who think the First Amendment should be interpreted to invalidate more campaign finance regulation has cited anything resembling Founding-era evidence that specifically addresses the question of campaign finance restrictions.

To be fair, neither have I been able to find (which is not to say that I have really looked for) Founding Era sources that support the constitutionality of campaign finance restrictions. I could, however, point readers to this recent and fascinating article in the Cornell Law Review arguing that the Framers WERE very much concerned about combating corruption. It suggests that considerations of the original understanding ought to make the Court sympathetic to campaign finance restrictions.

What is most interesting to me about the opinions by conservatives in this area is that they use the original understanding at such a high level of generality that it does no real work. The most glaring example is the plurality opinion of CJ Roberts in FEC v. Wisconsin Right to Life, in which he attributes imagined intent to the Framers by simply quoting the words of the First Amendment.

My point, to be clear, is not that judges cannot legitimately derive general principles from the text and other factors, including the original understanding about some general topic, and then apply those general factors to some specific case. My point is simply that doing so does not remotely resemble "originalism" as it is typically defended.

Despite (or perhaps because of) all that, I predict that the Court will overrule Austin and/or McConnell.

Posted by Mike Dorf