AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
with whom Justice Ginsbueg, 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 Unitedâs nor any other corporationâs speech has been âbanned,â ante, at 319. 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
The basic premise underlying the Courtâs ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speakerâs identity, including its âidentityâ 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 Courtâs 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 majorityâs 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 âreflects a
In his landmark concurrence in Ashwander v. TVA, 297 U. S. 288, 346 (1936), Justice BrandĂ©is stressed the importance of adhering to rules the Court has âdeveloped ... for its own governanceâ 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 Courtâs analysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudence more generally.
I
The Courtâs 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 corporationsâ 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 Courtâs invitation. This procedure is unusual and inadvisable for a court.
In the District Court, Citizens United initially raised a facial challenge to the constitutionality of §203. App. 23a-
â âIt is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,â â 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 âonly in the most exceptional casesâ 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 â[fjacial challenges are disfavored.â 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) (â[T]he ânormal ruleâ is that âpartial, rather .than facial, invalidation is the required course,â such that a âstatute may ... be declared invalid to the extent that it reaches too far, but otherwise left intactâ â (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 Courtâs decision. The unnecessary resort to a facial inquiry ârun[s] con
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.
Faced with this gaping empirical hole, the majority throws up its hands. Were we to confine our inquiry to Citizens Unitedâs as-applied challenge, it protests, we would commence an âextendedâ process of âdraw[ing], and then redrawing], constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.â Ante, at 326. 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
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 326 (as-applied review process âwould raise questions as to the courtsâ own lawful authorityâ); ibid. (âCourts, too, are bound by the First Amendmentâ). This suggestion is perplexing. Our colleagues elsewhere trumpet âour duty âto say what the law is,â â even when our predecessors on the bench and our counterparts in Congress have interpreted the law differently. Ante, at 365 (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
The majority suggests that a facial ruling is necessary because anything less would chill too much protected speech. See ante, at 326-327, 329, 333-336. 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 â âcensorship].â â Ante, at 335. 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 âsusceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.â 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 Justiceâs project to be a failure. In this respect, too, the majorityâs critique of line-drawing collapses into a critique of the as-applied review method generally.
Finally, the majority suggests that though the scope of Citizens Unitedâs claim may be narrow, a facial ruling is necessary as a matter of remedy. Relying on a law review article, it asserts that Citizens Unitedâs dismissal of the facial challenge does not prevent us â âfrom making broader pronouncements of invalidity in properly âas-appliedâ cases.ââ Ante, at 331 (quoting Fallon, As-Applied and Facial Challenges and
Citizens Unitedâs as-applied challenge was not of this sort. Until this Court ordered reargument, its contention was that BCRA § 208 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)
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 âcardinalâ principle of the judicial process: â[I]f it is not necessary to decide more, it is necessary not to decide more,â PDK Labs. Inc. v. Drug Enforcement Admin., 362 F. 3d 786,
Consider just three of the narrower grounds of decision that the majority has bypassed. First, the Court eould have ruled, on statutory grounds, that a feature-length film distributed through video-on-demand does not qualify as an âelectioneering communicationâ under §203 of BCRA, 2 U. S. C. § 441b. BCRA defines that term to encompass certain communications transmitted by âbroadcast, cable, or satellite.â § 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 FECâs implementing regulations do not clearly apply to video-on-demand transmissions. See Brief for Senator John McCain et al. as Amici Curiae 17-18. In light of this ambiguity, the distinctive characteristics of video-on-demand, and â[t]he elementary rule . . . that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,â Hooper v. California, 155 U. S. 648, 657 (1895), the Court could have reasonably ruled that §203 does not apply to Hillary.
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 âis funded predominantly by donations from individuals who support [its] ideological message.â Brief for Appellant 5. Numerous Courts of Appeals have held that de minimis business support does not, in itself, remove an otherwise
Finally, let us not forget Citizens Unitedâs 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 appellantâs 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 â and always spared expenditures restrictions â 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
This brief tour of alternative grounds on which the ease could have been decided is not meant to show that any of these grounds is ideal, though each is perfectly âvalid,â ante, at 329 (majority opinion).
II
The final principle of judicial process that the majority violates is the most transparent: stare decisis. I am not an absolutist when it comes to stare decisis, in the campaign finance area or in any other. No one is. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine. â[A] decision to overrule should rest on some special reason
The Courtâs central argument for why stare decisis ought to be trumped is that it does not like Austin. The opinion âwas not well reasoned,â our colleagues assert, and it conflicts with First Amendment principles. Ante, at 363. This, of course, is the Courtâs merits argument, the many defects in which we will soon consider. I am perfectly willing to concede that if one of our precedents were dead wrong in its reasoning or irreconcilable with the rest of our doctrine, there would be a compelling basis for revisiting it. But neither is true of Austin, as I explain at length in Parts III and IV, infra, at 414-478, and restating a merits argument with additional vigor does not give it extra weight in the stare decisis calculus.
Perhaps in recognition of this point, the Court supplements its merits case with a smattering of assertions. The Court proclaims that âAustin is undermined by experience since its announcement.â Ante, at 364. This is a curious claim to make in a case that lacks a developed record. The majority has no empirical evidence with which to substantiate the claim; we just have its ipse dixit that the real world has not been kind to Austin. Nor does the majority bother to specify in what sense Austin has been âundermined. â Instead it treats the reader to a string of non sequiturs: âOur Nationâs speech dynamic is changing,â ante, at 364; â[speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages,â ibid.; â[corporations ... do not have monolithic views,â ibid. How any
The majority also contends that the Governmentâs hesitation to rely on Austinâs antidistortion rationale âdiminished]â âthe principle of adhering to that precedent.â Ante, at 363; see also ante, at 382 (opinion of Roberts, C. J.) (Governmentâs litigating position is âmost importan[t]â factor undermining Austin). Why it diminishes the value of stare decisis is left unexplained. We have never thought fit to overrule a precedent because a litigant has taken any particular tack. Nor should we. Our decisions can often be defended on multiple grounds, and a litigant may have strategic or case-specific reasons for emphasizing only a subset of them. Members of the public, moreover, often rely on our bottom-line holdings far more than our precise legal arguments; surely this is true for the legislatures that have been regulating corporate electioneering since Austin. The task of evaluating the continued viability of precedents falls to this Court, not to the parties.
We have recognized that â[s]tare decisis has special force when legislators or citizens âhave acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.â â Hubbard v. United States, 514 U. S. 695, 714 (1995) (plurality opinion) (quoting Hilton v. South Carolina Public Railways Commân, 502 U. S. 197, 202 (1991)). Stare decisis protects not only personal rights involving property or contract but also the ability of the elected branches to shape their laws in an effective and coherent fashion. Todayâs decision takes away a power that we have long permitted these branches to exercise. State legislatures have relied on their authority to regulate corporate electioneering, confirmed in Austin, for more than a century.
By removing one of its central components, todayâs ruling makes a hash out of BCRAâs âdelicate and interconnected regulatory scheme.â McConnell, 540 U. S., at 172. Consider just one example of the distortions that will follow: Political parties are barred under BCRA from soliciting or spending âsoft money,â funds that are not subject to the statuteâs disclosure requirements or its source and amount limitations. 2 U. S. C. § 441i; McConnell, 540 U. S., at 122-126. Going forward, corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able to spend a dime of soft money on ads of any kind. The Courtâs ruling thus dramatically enhances the role of corporations and unions â and the narrow interests they represent â vis-a-vis the role of political partiesâ and the broad coalitions they represent â in determining who will hold public office.
Beyond the reliance interests at stake, the other stare decisis factors also cut against the Court. Considerations of antiquity are significant for similar reasons. McConnell is only six years old, but Austin has been on the books for two decades, and many of the statutes called into question by todayâs opinion have been on the books for a half century or more. The Court points to no intervening change in circumstances that warrants revisiting Austin. Certainly nothing
In fact, no one has argued to us that Austinâs rule has proved impracticable, and not a single for-profit corporation, union, or State has asked us to overrule it. Quite to the contrary, leading groups representing the business community,
In the end, the Courtâs rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Todayâs ruling thus strikes at the vitals of stare decisis, âthe means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashionâ that âpermits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.â Vasquez v. Hillery, 474 U. S. 254, 265 (1986).
III
The novelty of the Courtâs procedural dereliction and its approach to stare decisis is matched by the novelty of its ruling on the merits. The ruling rests on several premises. First, the Court claims that Austin and McConnell have âbannedâ corporate speech. Second, it claims that the First Amendment precludes regulatory distinctions based on speaker identity, including the speakerâs identity as a corpo
The So-Called âBanâ
Pervading the Courtâs analysis is the ominous image of a âcategorical ba[n]â on corporate speech. Ante, at 361. Indeed, the majority invokes the specter of a âbanâ on nearly every page of its opinion. Ante, at 319, 321, 324, 327, 328, 329, 330, 333, 337, 339, 340, 343, 344, 345, 346, 347, 349, 351, 354, 355, 358, 360, 361, 362, 364, 369. This characterization is highly misleading, and needs to be corrected.
In fact it already has been. Our cases have repeatedly pointed out that, â[c]ontrary to th