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Free & Fair

Citizens United, Stare Decisis, and Democracy

In reading the amicus brief in Citizen United filed by the congressional sponsors of the McCain-Feingold law, I am struck—and impressed—by the candor with which they address head-on the “vehement[] disagree[ment]” that some Justices have towards Austin and McConnell. The brief observes that this vehement disagreement is not grounds for overruling, precisely because there is nothing new about this fierce opposition to those precedents on the part of some Justices. 

Consequently, and with even more candor, the brief warns that, if Austin or McConnell is overruled, the impression may be that the mere change in membership on the Court—rather than any other development—is what caused the overruling. To support this point, the brief quotes from an opinion by Justice Stewart, of which I was previously unaware (or had forgotten):

“Given the unusual circumstances here, overruling precedents may well suggest that the outcome rested on ‘a ground no firmer than a change in [the Court’] membership, which would ‘invite[] the popular misconception that this institution is little different from the two political branches of government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.’ Mitchell v. W.T. Grant Co., 416 U.S. 600, 635 (1974) (Stewart, J., dissenting). Such a decision could threaten the Court’s legitimacy in the eyes of the Nation and undermine the respect this Court’s precedents should command.” Brief at 11-12.

The brief clearly wants to put Austin and McConnell in the category of Roe and Miranda—big constitutional decisions that have both vociferous opponents and supporters, on and off the bench—and thus Citizens United needs to adhere to the controversial precedents in the same way that Casey and Dickerson did. 

I personally am very sympathetic to this line of argument and hope that it can be persuasive to Chief Justice Roberts or Justice Alito, but wonder whether it will be. As I recall, at his confirmation hearing, Roberts spoke of the respect Justices need to accord one another for the reasonable interpretations of the Constitution with which they may disagree, even strongly. The doctrine of stare decisis, even as it applies to constitutional cases, is built on a premise (I recall Roberts saying) of the Justices recognizing that each of them acts in good faith in an effort to interpret the Constitution correctly as each of them sees it. Respect for constitutional adjudication under Marbury, as a form of law, requires that Justices acquiesce in the good-faith interpretations of the Constitution by previous majorities of the Court, when the Justices have no basis for overturning those prior good-faith decisions other than their own disagreement (however strong) with them.

But will this argument work if the Justice feels the tug of the First Amendment pulling in the other direction? One major aspect of our constitutional tradition, stated explicitly sometimes and only implicitly on other occasions, is that the Court has a special role in protecting the value of free expression—especially the expression of political opinion—so that democracy itself is not subverted by legislation. Thus, if a Justice is really convinced that Austin is wrong—horribly wrong, even if decided in good faith by other (egregiously misguided) Justices—can the Justice accept that stare decisis demands adherence to this especially pernicious precedent? The situation is not analogous to Roe or Miranda. Those precedents, assuming one believes they were terrible mistakes, undermined democracy only with respect to a fairly narrow field of social policy: abortion in the one case, and the rights of criminal suspects in the other. Austin (including its extension in McConnell), if one believes it is terribly wrong, undermines democracy across the board, by depriving citizens of the ability to hear political opinions that would otherwise be expressed to them were it not for the suppressive legislation. This crippling of democracy, if one sincerely believes it that, applies to any field of social policy: health care reform, taxes and spending, energy and the responsible use of natural resources, and on and on. In the face of such a wholesale danger to democracy, isn’t a Justice obligated to overrule—the Justice’s highest duty being to the Constitution’s preservation of democracy, and not to the Court’s preservation of its own precedents? 

It is in the face of questions like this that I wish the brief had gone even further in discussing the demands of stare decisis in the context of First Amendment precedents concerning campaign finance regulation—and that the academic community had also done more to explore this topic, on which the brief might then have relied. I think the application of stare decisis to Austin and McConnell calls for a complex interrelationship between (1) the obligation to adhere to precedent even when convinced it is wrong and (2) views about the degree of wrongness of a precedent from the perspective of First Amendment “first principles”.  I think the task is to show that there is a range of reasonable conceptions of democracy, and specifically the role of free expression in preserving it, that are consistent with the First Amendment. A Justice may think a particular conception of democracy wrong, but if it is within the bounds of reasonableness, then a Supreme Court precedent founded on that reasonable conception of democracy should get the kind of respect under stare decisis that Chief Justice Roberts spoke of at his confirmation hearings. Fidelity to the rule of law under Marbury, and thus to the Court’s good faith interpretations of the Constitution, should come first as long as those prior interpretations are within the range of reasonableness for the role that free expression plays in a democracy. 

This is not to say that a Justice must come to believe that Austin was correct in order not to overrule it. To say that would give stare decisis no role in this context. Rather, the Justice must come to see Austin, although wrong in his eyes, as not so egregiously wrong as to be outside the bounds of reasonableness as a decision about the role that free expression plays in a democracy. There is play in the joints, so to speak, about how a democracy organizes itself in relationship to certain aspects of free expression (including the role that economic resources play in funding that free expression). While the Justices are responsible for vigilantly policing the outer boundaries of how the democracy organizes itself in these regards (even to the point of owing no deference to prior Court precedents that misperceive this outer boundary), the Justices must not impose their own preferred vision of democracy among the reasonable alternatives—especially not when the Court’s precedents have previously sustained a different reasonable alternative.

Thus, a defense of Austin and McConnell cannot rely on stare decisis alone, which is why the brief in Citizen United of McCain-Feingold’s sponsors also attends to their merits under the First Amendment. I found the brief persuasive on this ground as well, but then I’m hardly the one who needs convincing. I don’t think Austin and McConnell were incorrect in the first place, and in any event it is the views of Roberts and Alito—not mine—that matter. Did this brief and the others in the case do enough to convince either Roberts or Alito that Austin and McConnell, while wrong from their perspective, are not so egregiously wrong to be outside the bounds of reasonableness as an account of the role of free speech in a democracy and thus deserve adherence under an appropriate conception of stare decisis applicable in this context?

We shall see, but I might have tried more of a slippery slope argument on this score. There is nothing like a slippery slope argument, which posits a difficult line-drawing problem, to show that a precedent—even if incorrect—is not egregiously or unreasonably so. To be sure, the line might have been drawn better in a somewhat different place. But how horrendous can it be that the Court previously drew the line where it did? 

The slippery-slope defense of Austin would go something like this: some corporations (and unions), even if not all, can be subjected to a ban on the use of their general-treasury funds for candidate advocacy.  Which corporations? At least those that have peculiarly close connections with the government itself, so that their expenditures on campaign ads risk being either the equivalent of incumbent officeholders attempting to abuse their positions of authority to keep themselves in power (a form of subversion of democracy, which would be at cross-purposes to the First Amendment) or a corruption of officeholders by particularly powerful private interests in a special position to undermine their integrity or a combination of both. Examples of these “public-sector corporations” would be the core components of the nation’s banking system, regulated utilities, and defense contractors. 

An argument along these lines might acknowledge that the First Amendment analysis is somewhat different if a hamburger restaurant, like Wendy’s or McDonald’s, attempts to use general-treasury funds for campaign advocacy, rather than the First National Bank of New York (or some other bank with legal ties to the Federal Reserve System and the nation’s money supply), or American Electric Power (which operates highly regulated nuclear plants), or Lockheed (which builds military jets). But if the proper line under the First Amendment is between public-sector and private-sector corporations, rather than between for-profits under Austin and non-profits under MCFL (the Court’s current line), is the current Austin/MCFL line really so outrageously wrong that it demands overruling at the earliest possibility opportunity? 

Up to now, efforts to defend Austin seem to have taken an either-or approach. Either defend on stare decisis grounds. Or defend as a correct interpretation of the First Amendment. It seems that there ought to be a defense that is a mixture of the two: Austin is not so antithetical to democracy that it does not deserve adherence by even a Justice who is strongly convinced of its error. 

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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