an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The briefs are flooding in for the Citizens United case, where the Supreme Court unexpectedly ended the Term not by issuing a decision, but by ordering the parties to submit additional briefs on whether the Court should overrule Austin v. Michigan Chambers of Commerce (the case upholding limits on corporate spending in candidate elections). The Court's order has generated something of a cocktail party game among election law scholars. We take turns naming which aspect of the order we find the most surprising. That the Court would consider reversing a key portion of its decision in McConnell v. FEC after a scant six years? That the Court might overrule Austin? That after making much of its statesmanship in avoiding the constitutional question in its recent Voting Rights Act case, it might ignore the canon of constitutional avoidance here? That the Court might invalidate restrictions on corporate spending dating back a century in one form or another?
Here's mine. I am stunned that the Court would think that an expedited briefing schedule is a remotely plausible substitute for a fully developed record. It's a point nicely made in the amicus brief filed by the DNC (in the interest of full disclosure, I should note that I informally kibitzed on the arguments in the DNC brief). While the First Amendment issues at stake in Citizens United are technically questions of law (something that one could imagine resolving after additional briefing), they turn on complicated questions of fact. It's not just that the regulatory scheme here is dense and intricate. The whole system is dense and intricate. Decisions made about one form of spending can have a powerful ripple effect. Even seemingly minor changes can affect how parties work, even how politics work. And the Court doesn't seem to be contemplating a minor change. Overruling Austin would blow a sizeable hole in the regulatory scheme.
A flurry of briefs filed in a short time period cannot possibly do justice to these difficult questions. The last time there was a major campaign finance question on the table -- the challenge to McCain-Feingold in 2003 -- the district court opinion took up 743 pages in the Federal Supplement. No, that is not a typo.
You might think that facts shouldn't matter here. Either the restrictions on corporate spending are constitutional, or they aren't. Damn the torpedoes, full steam ahead. But that's not how campaign finance doctrine works; it's not even how the First Amendment works. Context matters. That's why the Court spends time thinking about whether, say, newspapers are different from television stations. That's why the First Amendment applies differently to schools than it does to the public square. What is true of constitutional law generally is certainly true of the domain of politics. Elections are strange constitutional hybrids; they involve activities at the core of the First Amendment's protections and yet are pervasively regulated by the state. As a result, election law has always been exceptional, prompting scholars to insist that constitutional law simply can't be applied wholesale to election law.
If the Court wants to reconsider Austin, it is easy enough to do so. It need only offer a rather pointed hint in its Citizens United opinion and wait until a case travels through a trial court so that a proper record can be assembled. I would still be against overruling Austin. I have always been a bit of a campaign finance skeptic. But the small donor revolution we saw in 2008 offers us an unusual opportunity to rethink campaign finance, to move away from the "keep money out of politics" vision of campaign finance toward an approach that harnesses politics to fix politics. But at least if the Court overruled Austin in the proper course, with a full record before it, we would be quarreling about the merits of the decision, not about something as basic as the rules of judicial craft.