Dividing Citizens United: the case v. the controversy.

• Author: Tribe, Laurence H.
• Position: Symposium: Money, Politics, Corporations and the Constitution

In the five years since Citizens United, (1) that notorious and much-misunderstood (2) Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no."

As a case dealing with a particular controversy over a proposed publication, I believe Citizens United was rightly decided, for the reasons I discuss in Part I, even if it was resolved in a way that was symptomatic of judicial overreach all too common on the current Court. But as a symbol and a symptom, Citizens United has broader significance reflected in the Court's eventual opinion. It represents a bizarrely cramped and naive vision of political corruption and improper influence in the electoral process--one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression. (3) It is those trends, rather than the outcome of Citizens United as applied to the facts before the Court, that need to be revisited.

Part II provides a first cut at rethinking campaign finance law. This effort is informed by the recognition that there are few if any easy answers in this field. The First Amendment requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme. But, as I strive to show, the Supreme Court has started to privilege--throughout First Amendment law--an overly skeptical and distrustful understanding of democracy and an excessively rigid and mechanical approach to liberty, leaving equality increasingly out of the picture. (4) believe the Court would do well to rethink that approach.

1. CITIZENS UNITED AS A CASE

   The popular uproar over the outcome and aftermath of Citizens United has disguised the complexity of the issues presented in the case itself. Citizens United forced the Court to determine whether and how Congress can exclude disfavored speakers from the political marketplace altogether or severely restrict their participation in the name of political equality and electoral fairness. The strong language in Justice Kennedy's opinion about the necessity of categorical First Amendment protections for political discourse and the danger to our democracy of letting government officials decide who may and may not participate in that discourse expresses legitimate constitutional concerns that too often get minimized in the adverse reactions to Citizens United.

   The basic facts of Citizens United are worth revisiting because they are so often bypassed in the race to reach the more momentous issues. The case arose as a challenge to a federal law prohibiting "electioneering communications" backed by corporate funds in the thirty days before a primary election. The Bipartisan Campaign Reform Act of 2002 prohibited corporations and unions from funding such "electioneering communications," defined to include '"any broadcast, cable, or satellite communication' that 'refers to a clearly identified candidate for Federal office' and is made within 30 days of a primary ... election." (5)

   The putative "electioneering communication" at issue in the case was a film, Hillary: The Movie, a highly critical 90-minute documentary about Hillary Clinton, who was then a candidate in the 2008 Democratic presidential primary. Citizens United, a nonprofit corporation partially funded by for-profit corporations, sought to promote Hillary: The Movie on TV and distribute it through video-on-demand. Citizens United, fearing possible civil and criminal penalties under the campaign finance law for promoting the film, sought declaratory and injunctive relief against the Federal Election Commission, arguing that the restriction on "electioneering communications" was unconstitutional as applied to its case.

   These facts alone should give campaign finance reformers pause. A nonprofit corporation motivated by its openly proclaimed conservative ideology wanted to distribute a political documentary to willing, paying viewers--and it was being told it could not do so because some of its money came from for-profit corporations. Had the political shoe been on the other foot, many of those crying "foul" might have had second thoughts. Yet the constitutional rule obviously cannot depend on whether the relevant litmus turns red or blue. In my view, the Court was correct in holding that the government could not bar such a film from airing--particularly at the very time when it would likely have the greatest impact, just before an election. (6) But the Court did more than decide this as-applied challenge, instead reaching out to invalidate the statute on its face. As detailed below, such Court-invited broadening of the issues initially presented by the parties has become a trait characteristic of the Roberts Court.

   1. THE JUDGMENT OF THE COURT AND SOME INADEQUATE RESPONSES

      When the Court first heard argument in Citizens United, it became clear that in order to uphold the law's application to prevent Citizens United from distributing its film criticizing Hillary Clinton, the Court would also have to conclude that the very same organization could equally have been prevented from distributing a magazine or book with precisely the same content, at the same time, and with exactly the same financial backing. To be sure, efforts have been made to distinguish the print media from television on various (problematic) theories, focusing on spectrum scarcity or the ostensibly public ownership of the airwaves. But nobody supposes that books and films could plausibly be put into different First Amendment silos. (7) Yet the nightmare image of bookburning--think Fahrenheit 451 (8)--made the book hypothetical lethal to the attempt by the government's attorney, Malcolm Stewart, to defend the Obama Administration's effort to prevent what Citizens United sought to distribute. Justice Alito engineered a particularly devastating exchange in which the government lawyer seemingly had no choice but to concede that, under the Government's theory, Congress could even ban books about candidates for political office if they were funded with corporate money. (9) Chief Justice Roberts followed up: "It's a 500-page book, and at the end it says, and so vote for X, the government could ban that?" The lawyer replied that it could. (10) Though it took an additional round of oral argument and nearly a year for the Court to decide the case, (11) Justice Kennedy in his opinion for the Court made clear that the problem identified in the initial argument was very much on the mind of the majority, presenting a parade of horribles that could be permitted if the Court rejected Citizens United's facial challenge:

      The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship. (12) In each of these examples, an ideologically motivated nonprofit would be banned from participating in political advocacy, the very kind of speech that the First Amendment is meant to protect most vigorously. The risk of censoring print advocacy--canonical communication in the marketplace of political ideas--was too great, and the distinction between film and print too ephemeral, to uphold the bar on "electioneering communications" as applied to Citizens United's publication.

      Justice Stevens' vision of a "reasonableness" standard does little to provide a workable solution to this particularly nettlesome First Amendment quagmire. Since his retirement, Justice Stevens, who dissented vehemently in Citizens United (13) and has called the Court's decision "a giant step in the wrong direction," has continued to advocate his position in a book, in the media, and even before Congress. (14) He has proposed what he views as a simple solution to the campaign finance problem given the Court's evident unwillingness to revisit its precedent. His solution would take the form of a constitutional amendment: "Neither the First Amendment nor any provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns." (15)

      While Justice Stevens's solution has the appearance of simplicity--bracketing the political impossibility of its endorsement by the supermajorities demanded in Article V (16)--its standard of "reasonableness" is bound to prove far too indeterminate in application for a First Amendment standard, where the notorious chilling effect of vague and nebulous criteria has long led judges to steer clear of the mushy standards that suffice for government work in such areas as the law of search and seizure. Even Justice Stevens found his own proposed amendment difficult to apply in a recent interview. The interviewer "asked whether the...