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Tuesday, March 06, 2012

A Two-Pronged Approach for “Citizens United II”

Thanks for Dan and the gang for inviting me back. For my first post, I wanted to comment on Western Tradition Partnership, Inc. v. Attorney General of Montana. For those who do not already know, this is the case that Tom Goldstein over at SCOTUS Blog has dubbedCitizens United II.” Late last year, the Montana Supreme Court upheld Montana’s century-old campaign finance law, distinguishing Citizens United based in part on Montana’s unique history of political corruption. Not surprisingly, many have viewed that distinction as disingenuous, and the plaintiffs in the case have succeeded in getting the U.S. Supreme Court to issue a stay of the Montana Supreme Court decision, leaving the law suspended while the plaintiffs can file, and the U.S. Supreme Court can act upon, a petition for certiorari. The expectation is that SCOTUS will take one of two courses of action: grant cert. or summarily reverse. No one “in the know” expects that cert. will be denied.

Moreover, Justice Ginsburg, joined by Justice Breyer, issued a statement in conjunction with the issuance of the stay, suggesting that Citizens United be reconsidered and overruled, but ending with this telling observation: “Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, . . . Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.” Thus, it is apparent, at least to Justices Ginsburg and Breyer, that the Montana case is materially indistinguishable from Citizens United.

Accordingly, it appears that Montana will gain no traction with at least two of the three Citizens United dissenters currently on the Court arguing that the Montana case is distinguishable on the facts.

And if they are skeptical, I imagine that the five Justices in the Citizens United majority are even more so. Moreover, even if, as is likely, Montana has the votes of the final Citizens United dissenter, Justice Sotomayor, and Justice Kagan, who, as U.S. Solicitor General, argued that case for the United States, that leaves Montana one vote short for either overruling or distinguishing Citizens United. Finally, it is unlikely that Justice Kennedy, author of Citizens United, will abandon ship after only two years of experience under a Citizens United regime.

But perhaps Montana can win with a two-pronged approach. First, and most obviously, get the three Citizens United dissenters and Justice Kagan to agree that the case should be overruled outright. Second, get the vote of Justice Thomas – that’s right, Justice Thomas. The hook? At issue is a state statute, not a federal statute, so this is, strictly speaking, a Fourteenth Amendment case, not a First Amendment case.

Sound crazy? Consider two things. First, while eight Members of the Court appear to have drunk the incorporation Kool-Aid -- believing that if a provision of the Bill of Rights is incorporated against the States, it is incorporated "jot-for-jot" -- Justice Thomas remains, at least to a limited extent, an "incorporation skeptic." In a series of Estalishment Clause cases, including Zelman v. Simmons-Harris, and Elk Grove Unified School Dist. v. Newdow, he has articulated his view that the Estalishment Clause, if it constrains the States at all, does so in a different way than it does the federal government. And, tellingly, in a footnote in his concurrence in Zelman, he wrote this:

Several Justices have suggested that rights incorporated through the Fourteenth Amendment apply in a different manner to the States than they do to the Federal Government. For instance, Justice Jackson stated, ‘‘[t]he inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms.’’ Beauharnais v. Illinois, 343 U.S. 250, 294, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (dissenting opinion). Justice Harlan noted: ‘‘The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government. The substantive powers of the two governments, in many instances, are distinct. And in every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal.’’ Roth v. United States, 354 U.S. 476, 503–504, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (dissenting opinion). See also Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting).

Notice that the dissenting opinions he cites arguing for a two-track First Amendment standard are all in Free Speech Clause cases, not Establishment Clause cases. This suggests that, although Justice Thomas has come out forcefully against jot-for-jot incorporation only in the Establishment Clause context, he is open to such a position in Free Speech cases as well. I understand that he has never adopted this position, much less in a campaign finance case, but it may well be that it has never been presented to him in the briefing.

The second thing to consider is Gonzalez v. Carhart. There, the Court upheld the federal Partial-Birth Abortion Ban Act of 2003, which forbade a certain abortion procedure typically performed late in a woman’s pregnancy. Four Justices dissented on the ground that the Act created an undue burden on a woman’s right to choose to terminate her pregnancy. Justice Thomas, in a concurring opinion joined by Justice Scalia, indicated his essential agreement with the majority on the “undue burden” issue. But he also wrote:

I . . . note that whether the Partial–Birth Abortion Ban Act of 2013 [sic] constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.

I have always wondered why Carhart’s lawyers did not challenge the Act on Commerce Clause grounds. Had they done so, they might have won a split decision 4-2-3, rather than lose 5-4.

And so the same potential for a split decision might exist in “Citizens United II”: four Justices voting to overrule Citizens United and one voting to construe the Free Speech Clause, as incorporated by the Fourteenth Amendment, to be narrower than the Free Speech Clause in its “pure” form. Notably, Montana’s brief in the Montana Supreme Court touched upon this latter argument, as did one amicus brief, but without a full bore analysis of why free speech rights under the Fourteenth Amendment are narrower than those under the First Amendment. And a second amicus brief focused on Justice Thomas, but on his reliance in McDonald v. City of Chicago on the Privileges and Immunities Clause of the Fourteenth Amendment, rather than on his prior writings on the Establishment Clause.

Given what Justice Thomas has written in campaign finance cases that came from the States, getting him to change his vote based on his distinctive views of incorporation may be a long shot. But it also may be Montana’s only chance.

Posted by Michael J.Z. Mannheimer on March 6, 2012 at 12:38 AM in Constitutional thoughts, First Amendment | Permalink


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No dice. Justice Thomas is a skeptic of incorporation only to the extent that it relies on substantive due process, which he doesn't believe in. He concurred in the judgment in McDonald -- the biggest incorporation case in recent history -- because "the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause." The freedom of speech is a paradigm case of such an individual privilege (see the concurrence's discussion of Howard, Sumner, et al.). But the Establishment Clause, which was designed in part to *protect* existing state establishments from federal interference, may or may not be. And, in any case, if Justice Thomas were going to find the freedom of speech non-incorporated, he probably wouldn't have written his concurrence in McIntyre v. Ohio Elections Comm'n.

Posted by: anon | Mar 6, 2012 11:31:25 PM

The Heller approach. Interesting.

Posted by: Matthew Reid Krell | Mar 6, 2012 7:31:57 PM

In 44 Liquormart, Inc., et al. v. Rhode Island et al., Thomas didn't seem to be open to a watered down 1A when a state commercial advertising regulation was involved. He also didn't concur separately as to the 1A issue in Citizens United to suggest he would think differently in state cases. It is not as if state campaign finance cases didn't arise for him to do so. He is not shy to hint at his opinions on issues beyond the four corners of the case. Long shot.

If the USSC wanted to hear arguments on the Commerce Clause in the abortion case, it could have suggested as much. Also, the groups would be wary about a limited view of the Commerce Clause as a whole, including even concerning federal laws protecting the access to clinics. I'm sympathetic to raising the CC issue here but as with medicinal marijuana, the USSC does not seem to be in the mood.

Posted by: Joe | Mar 6, 2012 10:23:43 AM

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