Citizens United v. FEC in plain English
Re-argument, a special session, and Stevens' oral dissent
Lisa McElroy | Saturday, January 23rd, 2010 12:30 am
By now, you have likely heard the news: The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections. While the business entities may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast. Why? Because the First Amendment guarantees the right to free speech, and political spending is one form of that protected speech.
The four dissenting Justices were vocal and vociferous: They voiced the concern that allowing unfettered spending by rich corporations will allow those corporations to influence the outcome of elections in sweeping ways. They also explained that corporations are not human beings and should not have the same free speech rights that humans do.
As Lyle explained in his post yesterday, certain campaign finance rules remain valid after the Court’s decision. Corporations spending more than $10,000 a year on such ads have to disclose the names of donors who supported them. And corporations must reveal who sponsored the ad. Only Justice Thomas did not agree with these restrictions.
The case involved the now-notorious film produced by Citizens United that sought to discredit Hillary Clinton’s presidential candidacy. In ruling that Citizens United could not broadcast the film, the lower court invoked a federal law (known to most of us as McCain-Feingold) which prohibited corporations from spending money to broadcast “electioneering communications” within a certain number of days before an election. In other words, the law heavily restricted corporations’ political speech in the form of spending, as well as the timing and forum of broadcasts. Labor unions had been similarly restrained under federal law for over sixth years.
The timing of the decision is exquisite. With the mid-term elections coming up later this year, the decision is sure to prompt many corporations to make room in their budgets for political spending.
Much about today’s decision was not unusual: The Court was split five-to-four, along typical ideological lines (Thomas, Roberts, Alito, Kennedy, and Scalia in the majority, Sotomayor, Breyer, Ginsburg, and Stevens dissenting). The case made sweeping changes in federal election law, overturning previous Supreme Court cases and clarifying language in others.
But there were quite a few things about the Citizens United announcement and opinion that were unusual.
First, the length of the opinion. Actually, there were five opinions. Justice Kennedy wrote for the majority of five justices, and Justice Stevens wrote for the dissenters. Justices Scalia and Thomas and Chief Justice Roberts also filed separate opinions. But taken as a whole, this opinion was 176 pages. Unprecedented? Certainly not – big cases often result in long, detailed opinions, as well as several concurrences and dissents (and some opinions, especially in campaign finance and death penalty cases, have even approached 300 pages). But unusual? Definitely so. Remember that these opinions are dense, devoted to legal analysis and citation. Reading this opinion was an all-day job, even for those in the know. And writing it? That must have been an incredibly arduous task.
At this point, it may be useful to discuss how opinions are written at the Supreme Court. You probably know that a majority opinion is authored by a single Justice, but it stands for the opinion of the Court. Therefore, when we see Citizens United cited in the future, we won’t hear people say, “Justice Kennedy said . . .” Instead, they will say, “The Supreme Court held.” In other words, Justice Kennedy was responsible for expressing the views of the Court, not just his own. How did he come to write the opinion? Well, the Chief Justice (who has been on the Court for less time than all but one of the Justices in the majority, Justice Alito, but is nonetheless regarded as “senior” to the other Justices because he’s the Chief Justice) would have assigned him to do so. When the Chief is in the majority, he assigns the opinion to another Justice in the majority (or sometimes to himself). He chooses the author of the opinion based on a number of factors, such as whether a Justice has completed his/her workload, whether a Justice is due for his/her turn in writing an opinion (the Justices traditionally try to spread out the load as evenly as possible), and even how likely it is that authorship will keep a Justice in the majority. When the Chief is not in the majority, the senior justice in the majority makes the assignment.
Now, the Justices author the opinions, but they have lots of help. Every Justice is allowed to have up to four law clerks to help him/her with his opinion writing, among other tasks. Law clerks are usually recent law school graduates, most of whom were at the top of their respective classes at some of the best law schools in the country. Some Justices ask the clerks to write a first draft of an opinion, then give it to the Justice to revise. Some do the reverse. At least one Justice is widely known to employ both methods, drafting his own opinions but asking the law clerks to do the same, then deciding how to combine the two. At the very least, law clerks research the legal issues exhaustively and talk through the reasoning in an opinion with their Justice. For a case of this magnitude, that entailed countless hours of work.
What all of this means in terms of Citizens United is that there are some mighty tired law clerks and Justices out there somewhere. This case has been a long haul, from the cert. grant last Term to the first argument (also last Term) to the re-argument in September to this behemoth opinion, which certainly went through many drafts.
On to unusual detail number two. As mentioned above, this case has been going on for quite some time. In fact, it has even survived a Justice (Justice Souter, who retired in June) and lived to see a new one (Justice Sotomayor, who took her seat on the SCOTUS bench this summer). While it does happen from time to time that a case will be at the Court that long, it certainly does not happen often. The Justices try to conclude their work in deciding cases by late June every year. Often, this means that we see a slew of opinions in June – an exciting time for SCOTUS watchers. But in this case, the Court instead asked for re-argument this fall, meaning that they heard argument in the case twice. Why did the Court ask for the re-argument? Essentially, to address additional issues beyond the narrow ones on which the Court originally granted cert., including whether the Court should overrule precedential cases upholding restrictions on political spending by corporations.
Court watchers have been predicting for weeks that this decision would come down any minute. Now that we have seen the opinion, particularly the lengthy dissent, we can understand why it took quite some time. And the truth is that the Court makes its own schedule. It takes its time to make sure that an opinion is just right before announcing it; that makes sense, given how important the cases before the Court are and how far reaching the decisions will be.
So, unusual detail number three. The Court announced on Wednesday that it would have a morning session on Thursday, on a day with no arguments scheduled. Decisions are usually announced and opinions released on days when arguments take place; if you go to the Court to hear an argument, you may be lucky enough to be there on an opinion day, and you will hear one of the Justices announce the decision of the Court from the bench. There are also several days in non-argument weeks when the Justices announce orders and opinions. But given that today was supposed to be a work day for the Justices, rather than a day when they headed into the courtroom, Court watchers could guess that it was going to be an important decision coming down, and indeed many thought the time had certainly come for the decision in Citizens United.
Finally, unusual detail number four. Justice Stevens read his dissent (or some of it – if he had read all ninety pages, we’d still be in Court) from the bench. While the author of the majority opinion will often select a key portion of that opinion to read from the bench, it is quite unusual for a dissenter to do so. When it happens, it’s a sign that the dissenter feels very strongly that the Court got it wrong. Because the Court has a stake in operating as a uniform body – which is what keeps the rule of law alive, after all – dissenters generally “respectfully” dissent, both in writing (check out the last line of almost any dissenting opinion) and in conduct.
For more details on the substance of what the Court decided yesterday, check out Lyle’s informative posts on the opinion, as well as the links collected by Erin to other media sources.