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«THE ROBERTS’ COURT TAKES A SLEDGE HAMMER TO ASHWANDER AND CAUTIOUS CONSTITUTIONAL JURISPRUDENCE: CITIZENS UNITED V. FEDERAL ELECTION COMMISSION ...»

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STRICT SCRUTINY

THE ROBERTS’ COURT TAKES A SLEDGE HAMMER TO

ASHWANDER AND CAUTIOUS CONSTITUTIONAL

JURISPRUDENCE: CITIZENS UNITED V. FEDERAL

ELECTION COMMISSION

Allen Shoenberger •

I come to bury Caesar, not to praise him;

The evil that men do lives after them, The good is oft interred with their bones, So let it be with Caesar 1 In this January’s decision of Citizens United v. Federal Election Commission, 2 the Supreme Court overturned more than 100 years of legislative precedent, 3 as well as its own precedent of twenty years, 4 to permit corporations to spend unlimited amounts of money on direct advocacy of the election or defeat of candidates for political office.5 The breadth of the holding is startling. Although the specific context

• Professor of Law, Loyola University of Chicago. © 2010.

1. WILLIAM SHAKESPEARE, THE TRAGEDY OF JULIUS CAESAR, act 3, sc. 2.

2. 130 S.Ct. 876 (2010).

3. In 1907, Congress passed the Tillman Act, which was designed to prohibit corporate contributions to political campaigns. 34 Stat. 864, 59 Pub. Law 36 (1907); see also infra note 11.

4. The Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had held that a Michigan campaign finance act that prohibited corporations from using treasury money to advocate for or against political candidates did not violate the First and Fourteenth Amendments. Citizens United, 130 S.Ct. at 913.

5. 130 S.Ct. 876 (2010).

Allen Shoenberger, The Roberts’ Court Takes a Sledge Hammer to Ashwander and Cautious Constitutional Jurisprudence: Citizens United v. Federal Election Commission, 1 AKRON STRICT SCRUTINY 97 (2010), http://strictscrutiny.akronlawreview.com/files/2010/04/the-roberts’-court-takes- a-sledge-hammer-to-ashwander-and-cautious -constitional-jurisdprudence- citizens-united-v-federal-election-commission.pdf.

98 STRICT SCRUTINY considered a video-on-demand ninety minute diatribe regarding Presidential aspirant Hillary Clinton,6 the plain import of the holding reaches all federal and state elections, presidential, congressional, gubernatorial, judicial, and janitorial!

The sweep of the decision is simply mind-boggling! The only other Supreme Court decision of such broad electoral impact is Buckley v.

Valeo, 7 which sustained in large part Congress’s campaign finance reforms 8 designed to deal with the public perception of the electoral shenanigans that led to the Watergate scandal. 9 That was an era in which criminal break-ins occurred, not only into the Democratic National Committee headquarters, but also into Daniel Ellsberg’s psychiatrist’s office. 10 Ellsberg had leaked the Pentagon Papers, thereby becoming an enemy of the administration in Washington.11 The public was disgusted by such high level corruption, particularly that wrought by invisible campaign expenditures 12 and political slush funds. Congress

6. Id. at 887.

7. 424 U.S. 1 (1976).

8. Id. at 23-28

9. Ryan Watkins, The Political Implications of 527 Organizations Necessitate Reform, 50 SANTA CLARA L. REV. 547, 548 (2010) (citing Brandi Cherie Sablatura, Reformation of 527 Organizations: Closing the Soft Money Loophole Created by the Bipartisan Campaign Reform Act of 2002, 66 LA. L. REV. 809, 818 (2006)).

10. On Sept. 3, 1971, the burglary of Daniel Ellsberg’s Psychiatrist, Lewis Fielding’s office, authorized by top Presidential Advisor John Ehrlichman, was carried out by E. Howard Hunt, G.

Gordon Liddy and CIA agents Eugenio Martinez, Felipe de Diego, and Bernard Barker. These so called “Plumbers” failed to find Ellsberg’s file. Pat Shellenbarger, Silent Witness Wrote History, GRAND RAPIDS PRESS, Jan. 15, 2006, at A1.

11. Liz Halloran & Scott Michels, Curbing the Press: Why the Government Hasn’t Been This Antagonistic Since the Pentagon Papers Case, U.S. NEWS AND WORLD REPORT, June 12, 2006.

12. Eight justices in Citizens United did vote to permit the requirement that corporate advertisements must identify the sponsor, although Justice Thomas dissented on this precise point.

Justice Thomas has been recently quoted speaking at a law school in Florida. In a revisionist view of history that would have made Cold War Soviet historians proud, he describes the initial federal legislation prohibiting all corporate financing of federal elections as if it were a racist conspiracy.

Adam Liptak, A Justice Responds to Criticism From Obama, N.Y. TIMES, Feb. 4, 2010, at A17. In

fact President Teddy Roosevelt called for its adoption in his annual address to Congress in 1905:

All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use Allen Shoenberger, The Roberts’ Court Takes a Sledge Hammer to Ashwander and Cautious Constitutional Jurisprudence: Citizens United v. Federal Election Commission, 1 AKRON STRICT SCRUTINY 97 (2010), http://strictscrutiny.akronlawreview.com/files/2010/04/the-roberts’-court-takesa-sledge-hammer-to-ashwander-and-cautious -constitional-jurisdprudencecitizens-united-v-federal-election-commission.pdf.





STRICT SCRUTINY 99 acted to remedy both the reality and appearance of corruption through campaign finance reform, hoping to restore confidence in America’s system of governance. 13 The methodology of the Citizens United decision is just as startling as its holding, rejecting an anticorruption rationale.14 Not only is the holding expansive, the majority opinion fails to even cite Ashwander v.

stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts. Not only should both the National and the several State Legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation save by the employment of counsel in public manner for distinctly legal services.

President Theodore Roosevelt, Annual Address to Congress (Dec. 5, 1905) (transcript available at http://millercenter.org/scripps/archive/speeches/detail/3777). In the preceding paragraph, Roosevelt repeated his call for a law regarding bribery of the electorate. To debase Roosevelt’s message of anti-corruption by the unfortunate fact that the initial federal statute carries the name of a racist senator distorts history and is, quite frankly, dishonest and unbecoming of a Justice of the United States.

The Tillman Act of January 26, 1907 provided:

An Act to prohibit corporations from making money contributions in connection with political elections. Be it enacted, That it shall be unlawful for any national bank, or any corporation organized by authority of any laws of Congress, to make a money contribution in connection with any election to any political office. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice-Presidential electors or a Representative in Congress is to be voted for or any election by any State legislature of a United States Senator. Every corporation which shall make any contribution in violation of the foregoing provisions shall be subject to a fine not exceeding five thousand dollars, and every officer or director of any corporation who shall consent to any contribution by the corporation in violation of the foregoing provisions shall upon conviction be punished by a fine of not exceeding one thousand and not less than two hundred and fifty dollars, or by imprisonment for a term of not more than one year, or both such fine and imprisonment in the discretion of the court.

34 Stat. 864, 59 Pub. Law 36 (1907) (emphasis added). It is noteworthy that no distinction is made in the statute between direct contributions to a campaign and independent expenditures.

13. See Watkins, supra note 9.

14. Citizens United, 130 S.Ct. at 908-09.

Allen Shoenberger, The Roberts’ Court Takes a Sledge Hammer to Ashwander and Cautious Constitutional Jurisprudence: Citizens United v. Federal Election Commission, 1 AKRON STRICT SCRUTINY 97 (2010), http://strictscrutiny.akronlawreview.com/files/2010/04/the-roberts’-court-takesa-sledge-hammer-to-ashwander-and-cautious -constitional-jurisdprudencecitizens-united-v-federal-election-commission.pdf.

100 STRICT SCRUTINY T.V.A., 15 a case which describes a “constitutional avoidance doctrine.” 16 Ashwander articulates a policy of avoidance of deciding constitutional questions, particularly broad constitutional questions, if the court can fairly decide the particular case before it on other grounds such as statutory construction, or narrower constitutional grounds. 17 It is worth remembering that the first major declaration of unconstitutionality subsequent to Marbury v. Madison 18 was Dred Scott v. Sanford, 19 which moved the struggle for the rights of slaves from verbal battles in Congress to actual battlefields like Manassas and Gettysburg. 20 Broad

15. Justice Brandeis’ landmark concurrence in Ashwander v. TVA, 297 U.S. 288, 346-48 (1936), stated seven principles for deciding cases in which statutes are challenged on grounds that

they might be unconstitutional. These principles are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding... 2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it... 3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied... 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of... 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by it... 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits... 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Id. (citations, internal quotations, and footnotes omitted).

16. Some scholars trace the doctrine back to Chief Justice John Marshall’s opinion in Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”). See William K. Kelley, Avoiding Constitutional Questions As a Three-Branch Problem, 86 CORNELL L.REV. 831, 837 & n. 23 (2001).

17. Ashwander, 297 U.S. at 346-48 (Brandeis, J., concurring).

18. 5 U.S. (1 Cranch) 137 (1803).

19. 60 U.S. (19 How.) 393 (1857).

20. See Louise Weinberg, Dred Scott and the Crisis of 1860, 82 CHI.-KENT L. REV. 97 (2007). “Dred Scott may not have been a sufficient cause of the War, or the only cause, but it was a cause, a major cause, and in the minds of Americans then it was at the very eye of the storm.” Id. at 139.

Allen Shoenberger, The Roberts’ Court Takes a Sledge Hammer to Ashwander and Cautious Constitutional Jurisprudence: Citizens United v. Federal Election Commission, 1 AKRON STRICT SCRUTINY 97 (2010), http://strictscrutiny.akronlawreview.com/files/2010/04/the-roberts’-court-takesa-sledge-hammer-to-ashwander-and-cautious -constitional-jurisdprudencecitizens-united-v-federal-election-commission.pdf.

STRICT SCRUTINY 101 constitutional decisions are the nuclear weapons of the judicial arsenal, and just as dangerous. The Roberts five appear oblivious.

Citizens United flatly ignores the teaching of constitutional modesty set forth in Ashwander. 21 The decision similarly ignores the caution of Justice Jackson in regard to the use of the Due Process clauses of the U.S. Constitution: “Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable.” 22 A decision based on the First Amendment, as Citizens United is, similarly leaves conduct ungoverned and ungovernable by both Congress and the States. 23 Constitutional modesty “[p]rinciples rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” 24 Instead of narrow construction, the Citizens United Court reached out and dealt with the case as if it presented an “unconstitutional on its face” attack—a ground withdrawn at the three judge district court level 25—in favor of a narrower “unconstitutional as applied” attack. 26 In my forty years of teaching constitutional law I cannot remember another Supreme Court decision that did anything similar to this. 27 In many, many decisions the court has converted “on the face” attacks into “as

21. See 297 U.S. at 346-48 (Brandeis, J., concurring).

22. Railway Express Agency Inc. v. New York, 336 U.S. 106, 112 (1949) (Jackson, J., concurring).

23. See id.

24. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973).

25. Citizens United stipulated at the District Court level to dismissing Count 5 of its complaint, which raised a facial challenge to the act. Citizens United, 130 S.Ct. at 892. As the dissenting opinion notes, this dismissal meant that a record was not developed in the district court on the actual effects of the statute. “The Court operates with a sledge hammer rather than a scapel when it strikes down one of Congress’ most significant efforts to regulate the way that corporations and unions play in electoral politics.” Id.at 933 (Stevens, J., dissenting).

26. Id. at 892.

27. Even Bush v. Gore did not quite reach as far, although the “tone” may not be all that dissimilar.



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