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Tuesday, February 09, 2010

Overruling Austin: Constitutional Modalities in Citizens United

On my first, and concededly very rough, cut through Justice Kennedy's opinion in Citizens United, I was interested in his justification for overruling Austin v. Michigan Chamber of Commerce--a decision rendered just twenty years ago.  By my read, he deploys a reasonably diverse set of modal arguments--including assertions cast in the structural, historical, ethical, and even doctrinal forms--in explaining the Court's decision; but it is prudentialism that does the real work.

Let me begin with the doctrinal arguments, as I think this modality probably seems the most counterintuitive source of arguments for overturning recent precedent.  Right out of the gate, Kennedy presents Austin as a doctrinal abberation--"The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker's corporate identity and a post-Austin line that permits them"--but surely this is not enough, doctrinally speaking, to overrule a case.  After all, this is precisely how doctrine works; one day something is constitutional, the next day it's not, right?  In fact, Kennedy's thrust here is really more of an ethical one, as he presents Austin as out of line with our best traditions.  But he goes on, a few pages later, to make a more explicitly doctrinal claim, this based on BCRA's exemption for media corporations: "There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not."  In other words, the doctrine does not permit differential treatment for the media (though the text certainly might), and Kennedy is pessimistic about the Court's ability to craft a principled test to distinguish between the two moving forward.  In the end, then, the exemption becom es a legislative "admission of the invalidity" of Austin's rationale.  This, to me, is a fascinating and clever bit of doctrinalism, though I wonder what others think.

Kennedy also makes some argumentative efforts on behalf of history, structure, and ethos.  Historically, he concedes that "the Framers may not have anticipated modern business and media corporations," but he concludes that this "does not mean that speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted."  He also makes the structural claim that "[p]olitical speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation than from an individual," as he worries that the presence of a "brooding governmental power" might undermine the architectural stability the First Amendment provides.  Ethical argument also makes an appearance with a deft reference to Federalist 10 and the national conviction that controlling faction by suppression is a remedy "worse than the disease."  But for my money the modality that does the heavy lifting in this portion of the opinion is prudentialism, as Kennedy goes to battle with the policy interests he sees underlying Austin.

In Kennedy's view, those interests are: (1) the "antidistortion rationale"; (2) an "anticorruption interest"; and (3) a "shareholder-protection interest".  The first rationale, he suggests, produces the "dangerous, and unacceptable, consequence that Congress could ban the political speech of a media corporation." (Recall his reluctance to trust the Court with making sufficient doctrinal distinctions to prevent this).  Further, Kennedy claims, the statute's policy purpose is not even to prevent the kind of distortions claimed.  Rather, it prevents groups of concerned citizens from pooling their resources in non-profits and other small corporations so that they might more effectively combat the real moneyed interests in politics.  To this end, he argues that the restrictions are "not even aimed at amassed wealth."  The second rationale arises out of language in Buckley v. Valeo suggesting that future restrictions might be permissible to prevent corruption or the appearance thereof.  Kennedy makes fairly short and straightforwardly prudential work of this--the types of expenditures BCRA limits are not the kind of coordinated or quid pro quo arrangements that could rise to corruption or its appearance.  In fact, the expenditures at issue actually rely on the fact that political candidates are beholden to their constituents: "The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials."  The third rationale--the interest in protecting shareholders from seeing their money spent on political speech--gets even less respect, with Kennedy simply asserting that there is "little evidence of abuse that cannot be corrected by shareholders through the procedures of corporate democracy."  As a policy matter, if legislators were really concerned about this problem, they would not have confined the spending restrictions to the weeks immediately preceding an election.

To me, then, the decision to overturn Austin was--at least for Kennedy--primarily a prudential one--and as such is subject to revisitation, potentially, after we get to see the policy in effect.  But I'm sure others see it differently, and I hope you'll let me know.  Thoughts?

Posted by Ian Bartrum on February 9, 2010 at 02:10 PM | Permalink


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Thanks, Rick. You may be right; it may be that prudentialism is doing the justificatory work in the opinion, but that really it's Kennedy's sense of First Amendment ethos that's motivating the decision. In fact, it may be that he sees Austin itself as such a prudential kind decision that he simply felt it necessary to fight fire with fire...

Posted by: Ian Bartrum | Feb 10, 2010 11:18:39 AM

Great post, Ian. Like you, I see (hear?) many of the modalities in Kennedy's opinion, but I think that others (besides just prudentialism) are doing the work. After all, Justice Kennedy sees himself (for better or worse) as the High Priest of (a fairly libertarian understanding of) Free Speech, and so I don't think we should be surprised that he thinks Austin's animating premises (and not just its consequences) are objectionable.

Posted by: Rick Garnett | Feb 9, 2010 9:07:07 PM

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