Musings On Citizens United: An Appellate Advocate’s Perspective

Dan Schweitzer, Supreme Court Counsel

Dan Schweitzer, Supreme Court Counsel

Without question, the most important opinion the U.S. Supreme Court has issued this term is Citizens United v. Federal Election Commission. By a 5-4 vote, the Court overruled at least two of its precedents and held that the First Amendment bars the government from limiting independent expenditures by corporations on political campaigns. Much has been written already about this decision, ranging from analyses of its legal reasoning to predictions regarding its practical effects to discussions of what it tells us about the Roberts Court. To avoid repeating that literature, I am going to address an aspect of Citizens United that has received little attention: what lessons it provides on the craft of appellate advocacy.

The Challenge of Concessions

One of the greatest challenges attorneys face at oral argument is deciding whether to make a concession. All attorneys dread the prospect of reading an opinion which claims that counsel conceded away the case. Yet concessions are sometimes necessary to assure the Court that you are not overreaching. These competing concerns came to a head during the first oral argument in Citizens United on March 24, 2009. (The Court heard reargument on Sept. 9, 2009 to address specifically whether it should overrule Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and part of McConnell v. Federal Election Commission, 540 U.S. 93, 203-209 (2003).) The short version of the lesson is, “Don’t tell the Court the government can ban books!” As usual, however, things are a bit more complicated.

The case centered around the efforts of a non-profit corporation, Citizens United, to disseminate through video-on-demand a documentary film, Hillary: The Movie, during the Democratic Party’s 2008 presidential primary elections. The Federal Election Commission concluded that the documentary, which was highly critical of then-Senator Hillary Clinton, constituted the functional equivalent of “express advocacy,” and therefore was an “electioneering communication” subject to 2 U.S.C. §441b, as amended by the Bipartisan Campaign Reform Act (BCRA). The amended provision barred corporations and unions from using general treasury funds to make “any broadcast, cable, or satellite communication” referring to a candidate within 30 days of a primary or 60 days of a general election.

At oral argument, the justices pressed the deputy solicitor general on the breadth of the government’s position. Asked Justice Alito, is there “any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs . . . in a public library, [or] providing the same thing in a book?” Counsel responded that “the electioneering communication restrictions . . . could have been applied to additional media as well.” At that point, the flood gates opened.

“That’s pretty incredible,” responded Justice Alito. “You think that if – if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” Not banned, counsel responded, but “Congress could prohibit the use of corporation treasury funds and could require the corporation to publish it using its [PAC].” Justice Kennedy and Chief Justice Roberts asked follow-up questions pressing this point, which ended up filling 12 pages of the transcript. Justice Kennedy: “Your position is that under the Constitution, the advertising for this book or the sale of the book itself could be prohibited within the [60- and] 30-day period?” Chief Justice Roberts: “if we accept your constitutional argument, we’re establishing a precedent that you yourself say would extend to banning the book, assuming a particular person pays for it?” Even Justice Souter, who regularly voted to uphold campaign finance laws, got in on the act, asking whether labor unions could pay for the publication of a book advocating the election of a candidate. “The labor union’s conduct would be prohibited,” stated counsel.[1]

In assessing this exchange, it’s important to keep in mind that the deputy solicitor general is an experienced and talented advocate who certainly vetted this precise question with his colleagues before the argument. And his answers made perfect sense as a matter of doctrine. After all, why would the Constitution permit the government to limit corporate expenditures on movies, DVDs, and television shows, yet bar the government from limiting corporate expenditures on books? It is one thing, perhaps, to distinguish between speech by the media corporations and speech by non-media corporations; and it is one thing, perhaps, to distinguish between speech by individuals and speech by corporations. But it is another thing to say that the First Amendment places the written word above the filmed or videoed word. If it’s problematic to ban corporate speech through the medium of books, it’s also problematic to ban corporate speech through the medium of movies.

That is why the deputy solicitor general instead emphasized that the law doesn’t ban any speech. The law merely says that such speech must be funded by a corporation’s PAC, not a corporation’s general treasury fund. Alas for counsel, the questioning justices didn’t think much of that distinction. From their perspective, the corporation was being banned from publishing and distributing books. An entirely separate entity, the PAC established by the corporation, was not.

So what was counsel to do? When the case was reargued in September, Justice Ginsburg raised the issue of corporate expenditures on books. Solicitor General Kagan responded, to laughter, “The government’s answer has changed.” She stated that “We went back, we considered the matter carefully, and the government’s view is that although [one of the two provisions at issue] does cover full-length books, that there would be quite [a] good as-applied challenge to any attempt to apply [the provision] in that context.”

That answer raised problems of its own. Chief Justice Roberts asked about pamphlets. “I think . . . a pamphlet would be different. A pamphlet is pretty classic electioneering.” This left Justice Alito thoroughly confused: “In light of your retraction, I have no idea where the government would draw the line with respect to the medium that could be prohibited.”[2] Nonetheless, most observers agree that General Kagan’s answer was the better one. No one wants to hear the government say that it can ban books, even if one way of looking at the issue is that it involves only who may fund the production and distribution of the books.

What does this teach us? First, sometimes a concession is necessary. Note that it was General Kagan’s answer that was the concession, not the deputy solicitor general’s. She conceded that the government lacks the power to regulate corporate election speech by preventing corporations from producing election-related books. That appeared necessary to give the justices comfort that the government position did not reach too far. (Alas for the government, only four justices were sufficiently comforted.)

Second, doctrinal purity and consistency is not always the most important consideration. The government’s original answer to the question was probably a better one as a matter of First Amendment doctrine and logic. But doctrine and logic must sometimes give way in an argument (and briefing). Judges are skilled at writing opinions that distinguish, minimize, or ignore doctrinal inconsistencies when they need to in order to reach the proper result.[3] As the Citizens United example shows, it is sometimes best to rely on that tool of judging.

Asking that Precedents be Overruled

Another common tactical challenge that state attorneys face is deciding when to ask a court to overrule one of its precedents. Convincing a court to overrule a precedent can be a “home run” that benefits the state even more than a narrow win based on distinguishing the precedent. On the other hand, a court might interpret a request to overrule a precedent as expressing a lack of faith in the state’s effort to distinguish it.

The lesson of Citizens United, I believe, is that resolving this dilemma comes down to knowing the court and its members. Based on the justices’ prior votes, Supreme Court watchers knew that five of them were hostile to campaign finance laws. The usual swing vote ― Justice Kennedy ― wrote the principal dissent in Austin and joined the dissent in McConnell, which argued that Austin should be overruled. And the other four conservatives had either already called for overruling Austin or strongly hinted that they were willing to reconsider it.[4]

What was striking about the Court’s decision to overrule Austin and McConnell is that Citizens United appeared to have waived in the lower courts the argument that the relevant provisions were facially unconstitutional. As Justice Stevens explained in his dissenting opinion, Citizens United “expressly abandoned its facial challenge” in its motion for summary judgment; “the parties stipulated to the dismissal of that claim”; the district court “resolved the case on alternative grounds”; and Citizens United’s jurisdictional statement seeking Supreme Court review stated “that it was raising only ‘an as-applied challenge to the constitutionality of [the provisions].’” Slip op. 4-5 (Stevens, J., dissenting).

Given that procedural background, Citizens United’s counsel must have felt some hesitation before asking the Court to strike down the provisions and overrule Austin and McConnell. In the end, though, they knew their Court. And just as judges are skilled at dealing with doctrinal inconsistencies, they are skilled at dealing with procedural obstacles. The majority in Citizens United put forth an array of reasons why the facial challenge was properly before it,[5] and went on to overrule Austin and McConnell.

Whether the majority or the dissent had the better of the argument on this procedural dispute is beside the point. What matters for present purposes is that a majority that wants to overrule a decision can find the way to do so. The skilled appellate advocate should be able to determine when a Court will be amenable to a sweeping ruling and when it will not.

The Power of the Syllogism

In a book he recently co-authored, Justice Scalia advised brief writers to “[t]hink syllogistically,” “the clearer the syllogistic progression the better.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 41 (2008). There’s no better example of this than Citizens United.

At bottom, Citizen United’s argument for overruling Austin came down to:

Major premise: The Free Speech Clause prohibits the government from limiting individuals’ independent expenditures on political campaigns.

Minor premise: The Free Speech Clause’s protections extend to corporations.

Conclusion: The Free Speech Clause prohibits the government from limiting corporations’ independent expenditures on political campaigns.

It seems so simple! Buckley v. Valeo, 424 U.S. 1, 47-48 (1976) (per curiam), established the major premise. In support of the minor premise, the Citizens United majority had a handy list of almost 20 of its decisions that “recognized that First Amendment protection extends to corporations.” And the conclusion inexorably followed.

Of course, the real debate centered on the “minor premise”: To what extent are corporations entitled to full First Amendment protections? Are they no different from individuals in this context? In regulating the financing of campaigns, may Congress take into account the special attributes of corporations? Debating those issues, and the import of stare decisis, led to 150 pages of competing opinions. Nonetheless, in the end, a majority of the Court accepted the syllogism that rested at the heart of Citizen United’s case.

Rebutting Parades of Horribles

At one time or another we’ve all argued that if the other side’s position is adopted, horrible things will occur. Criminals will run amok. Prisoners will escape. Taxes will go up. We’ve also been on the receiving end of these sorts of arguments. Citizens United provides a good example of one technique for defusing them.

The United States defended the ban on corporate general-treasury expenditures on campaigns by arguing that the political process would be corrupted by unlimited corporate spending. The Court rejected that contention, noting that “26 States do not restrict independent expenditures by for-profit corporations. The Government does not claim that these expenditures have corrupted the political process in those States.” Slip op. 41. If the sky really will fall if Austin is overruled, wouldn’t we have noticed a problem in those 26 states?

This is an effective retort and has wide application. The Supreme Court typically tackles issues that have divided the lower courts. That means it’s often the case that the allegedly problematic rule is already in place in a number of jurisdictions. Where possible, remind the Court that the terrible problems your opponent alleges will arise under your rule has not occurred in those states that have lived under that rule for years.

Damage Control

Knowing the court in which you’re appearing means, on occasion, knowing that you’re going to lose. When that’s the case, your goal should be damage control. How do you lose as narrowly as possible? Once again, Citizens United provides an excellent illustration.

Given the Court’s decision in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (effectively striking down BCRA’s amendment to §441b), and the Court’s willingness to review the district court’s opinion in this case, the solicitor general’s office knew that its odds of prevailing were low. And once the Court ordered reargument expressly to address whether Austin and McConnell should be overruled, the writing was clearly on the wall. At this point, the solicitor general’s focus was on preserving Austin and McConnelli.e., not losing on the broadest grounds.

At reargument, therefore, General Kagan emphasized that Citizens United “is an atypical plaintiff . . . because this plaintiff is an ideological nonprofit.” Here’s why: In Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 263-64 (1986) (MCFL), the Court held that the restrictions on corporate expenditures were unconstitutional “as applied to non-profit corporations that were formed for the sole purpose of promoting political ideas, did not engage in business activities, and did not accept contributions from for-profit corporations or labor unions.” The so-called MCFL exemption did not apply to Citizens United because some of the funds it used to make Hillary: The Movie came from for-profit corporations. A narrow loss for the government, therefore, would be a slight expansion of the MCFL exemption to include ideological non-profit corporations that received de minimis funding from for-profit corporations.

Chief Justice Roberts saw where General Kagan was going and asked, “So you are giving up . . . the distinction from MCFL that you defended in your opening brief? There you said this doesn’t qualify [for the MCFL exemption] because it takes corporate funds, and now you’re changing your position?” She responded, “I don’t think MCFL as written applies in this case, but I think that the Court could, as lower courts have done, adjust MCFL potentially to make it apply in this case.” When the Chief Justice pressed that “you want to give up this case,” she put it directly: “No. . . . [W]e continue to think that the judgment below should be affirmed. If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.”[6]

In my opinion, that was precisely the right tack to take, and a well-crafted response to the Chief Justice’s question. It is rare that an advocate is forced to say, directly, that “if we lose, here’s how we’d like to lose.” Advocates often, however, implicitly lead courts down that path. Citizens United was the rare case where a major loss appeared so imminent that expressly suggesting a narrower loss was a sound ― although ultimately unsuccessful ― strategy.[7]


[1] This discussion of “book banning” can be found at pages 26-38 of the argument transcript, available here.

[2] This colloquy can be found at pages 64-68 of the argument transcript, available here.

[3] For example, Justice Stevens’ dissenting opinion in Citizens United criticized the majority for “[r]oaming far afield from the case at hand” by “worr[ying] that the Government will use [the provision] to ban books.” The dissent observed that the provision does not reach books, and that if it did “the Government acknowledges ‘there would be quite [a] good as-applied challenge.’” Slip op. 25-26 n.31. Note how that sidesteps the tricky doctrinal question of why the First Amendment would permit the Government to “ban” the expenditure of money on movies and videos, but not on books.

[4] See McConnell, 540 U.S. at 256-262 (Scalia, J., joined by Rehnquist, C.J., Kennedy, J., and Thomas, J., concurring in part, concurring in judgment in part, and dissenting in part); FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469-70 (2007) (opinion of Roberts, C.J., joined by Alito, J.); id. at 482-83 (Alito, J., concurring).

[5] The majority noted that the district court, in its first opinion, “addressed Citizens United’s facial challenge”; observed that Citizens United had always asserted a First Amendment challenge and the request that Austin be overruled “is ― at most ― a new argument to support” that claim; and noted that the difference between a facial and as-applied challenge is the relief a court can provide, and “[t]he parties cannot enter into a stipulation that prevents the Court from considering certain remedies if those remedies are necessary to resolve a claim that has been preserved.” Slip op. 13-14 (internal citation and quotation marks omitted).

[6] This colloquy can be found at pages 38-40 of the argument transcript.

[7] The Citizens United majority criticized the United States for not stating that it agreed with extending the MCFL exemption. Slip op. 11 (“The Government, like any party, can make arguments in the alternative; but it ought to say if there is merit to an alternative proposal instead of merely suggesting it.”). I agree with Justice Stevens that this was unfair. Slip op. 10 n. 7 (Opinion of Stevens, J.) (“Like every litigant, the Government would prefer to win its case outright; failing that, it would prefer to lose on a narrow ground. The fact that there are numerous different ways this case could be decided, and that the Government acknowledges as much, does not demonstrate anything about the propriety of a facial ruling.”).

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