Why The Roberts Court Must Avoid Constitutional Avoidance

The clock keeps ticking away as election law observers await the Supreme Court’s to release its opinion in Citizens United v. FEC. This kind of delay has caused some anxiety for members of the campaign finance reform lobby. With each day that passes, the probability that something big is about to happen grows – stirring the pot of discontent. In Citizens United, “something big” means bringing clarity to the guarantee of free expression and clearing the mumbo jumbo of First Amendment jurisprudence that has muddled election law since the Court’s new take on campaign finance in McConnell.

The reform lobby has shifted into alarmist mode because they realize that if Austin and McConnell fall, a revived First Amendment jurisprudence will thwart many of their efforts to ban, regulate, and limit political speech nationwide. This concern can be seen in the writings of Fred Wertheimer, President of Democracy 21, who grows more anxious on a daily basis. Wertheimer’s fretfulness stems from the fact that he sees the very real potential that Chief Justice Roberts may stay true to his course and take a principled stand in favor of the First Amendment. Wertheimer quivers so, compelling him to reproduce the Chief Justice’s Senate confirmation testimony to remind Roberts about his duty to protect prior precedent, however bungled. In that testimony, Roberts explained that precedent “plays an important role in promoting stability and evenhandedness.” And Fred reminds the Chief Justice that Citizens United will be a “defining moment” for him.

Citizens United will be a defining moment for the Roberts Court. It is worthwhile to recall that as it currently stands, citizens who dare speak up about their views in political campaigns face no shortage of complicated forms, tests, and rules with which to comply. Since Austin, groups of citizens assembled together – corporations – have struggled to find ways to express themselves because of broad prohibitions against the imagined evil of their speech – that is the Sierra Club, McDonalds, and National Right to Life. And since McConnell, speakers nationwide have had to make sense of the utterly senseless – trying to cabin their speech into elaborate rules fashioned by government good-speech commissions and usually failing. These kind of complicated regimes of rules and regulations ensure that government agencies will rule the marketplace of speech and ideas, blunting out average citizens and speakers.  

Certainly the Chief Justice is known for his penchant for judicial modesty. And it is also true that stability and evenhandedness are prime judicial values to be upheld. But it surely cannot be true that all challenges at all times must be decided in a way that flexes the muscle of the canon of constitutional avoidance. In light of the Roberts Court, most observers have praised the Chief Justice for his skill in reaching out to other justices and building consensus. In many instances, he has employed his modesty to promote stability and evenhandedness where controversial constitutional rulings could have erupted. But when the Chief Justice decides enough truly is enough, shouldn’t there also be respect for his judgment in those instances just the same?

Citizens United is just such an outlier. Fortunately, Chief Justice Roberts, and other members of the Court, have taken notice of the pernicious effects of what is best described as a most jumbled and contradictory campaign finance jurisprudence. In the realm of election law, there is no stability to preserve. The Court’s longstanding free speech case law is a jurisprudence of doubt. Even left-of-center academics have admitted as such.

Election law is a jurisprudence where uttering the profane is more likely to be protected than speech critical of the government. This is a jurisprudence where average citizens must guess whether their speech will be deemed “sham” or “genuine” by government bureaucrats. This is a day in the life of a federal commission that itself cannot make sense of its own Byzantine speech juggernaut.  This is a jurisprudence where complicated balancing tests rule the day – not the enforcement of our Framers’ bold promise, “Congress shall make no law.”

Were there stability to be found, Chief Justice Robert’s judicial modesty might be welcome. But where the Court has failed to produce coherence, to uphold the prime guarantees of the First Amendment, and obscurity now rules the day, something else must be in order. To preserve the American tradition that respects criticism of our elected officials and promises unpopular and unorthodox views equal protection, the Court must act boldly now so that stability and evenhandedness will come to be the norm for free expression.