Why Citizens United May Not Be NAMUNDO

Barry Friedman

Pundits are predicting the Supreme Court is poised to invalidate a key provision of the campaign finance laws in the Citizens United case. They were making similar predictions regarding the pre-clearance provisions of the Voting Rights Act last term – but in that instance the Court ducked. The interesting question is why the Court would avoid controversy in one case, but not the other.

With regard to the Voting Rights Case – NAMUNDO v. Holder – Jack Balkin and I both felt the Court was responding to the political environment the justices face. The Voting Rights Act is popular with Democrats and had recently been renewed with overwhelming majorities in both houses of Congress. Barack Obama is in the White House. Over-ruling a key provision of the recently-renewed congressional law might have brought the Court in for some serious and uncomfortable criticism.

But if the justices are seeking to avoid this kind of trouble, why would they feel safe to go ahead and strike down the ban on corporate electioneering in the Bipartisan Campaign Reform Act.

One answer might involve salience. Campaign finance is not an issue that seems to rank high on the public’s list of important issues. Of course, it is not clear that overturning the voting rights law would have brought much of a public backlash either. The threat in that case seemed mostly congressional, and so this difference may not be determinative.

On the other hand, Citizens United was a First Amendment case. The justices are particularly lacking in deference to Congress when it comes to the First Amendment. Think here of internet porn, school prayer, flag burning. But still this begs the question. Why is the First not like all other amendments when it comes to judicial review?

A related answer might involve the media. Perhaps the justices may have more leeway in First Amendment cases because the media – which understandably loves the First Amendment – offers the Court some cover from the political heat in these cases.

And in fact, the tension between cleaning up politics, and suppressing speech to do so, has split the left over the constitutionality of the campaign finance provisions. This is a message readily apparent to the justices from the amicus briefs filed in Citizens United. As Mark Graber has argued persuasively, such splits in the governing coalition create yet further space for the justices to go ahead and rule as they would like.

For all the reasons that held sway in NAMUNDO the justices might ultimately conclude that discretion is the better part of valor. Half-way measures have been urged on the Court that would allow it to stop short of overruling Austin v. Michigan Chamber of Commerce and striking the corporate electioneering provision of BCRA. But this time there are reasons on the other side as well.