Citizens United v. FEC: A look behind the scenes

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We’ve been spreading the word that the Supreme Court is considering a critically important case this fall: Citizens United v. Federal Election Commission. The case started out as a pretty technical dispute about the application of the McCain-Feingold campaign finance law to the right-wing group Citizens United’s plan to broadcast a movie smearing Hillary Clinton during last year’s presidential elections. After hearing arguments in the case this spring, the Supreme Court upped the ante by asking the parties of the case to come back in September and argue a much broader issue: Whether the court should overrule key precedents and hold that business corporations have unlimited rights to spend as much money as they want on political campaigns.

Around the time the case was argued on Sept. 9, it was the subject of front-page newspaper stories and got a lot of radio and television coverage (including “The Word” on the Colbert Report), as well as the attention of folks in the blogosphere. And the public responded. We’ve heard a tremendous amount of concern by ordinary people who are afraid that their voices will be supplanted by that of big business in our political campaigns, and lots of folks have taken actions to express their support for campaign finance reform (see http://citizenvox.wpengine.com/2009/09/10/the-dont-get-rolled-roundup/).

But now, a month and a half later the case has dropped off the front pages. Seemingly, nothing has happened. Has the issue gone away? Not a chance. We asked Public Citizen attorney Scott Nelson, a member of the legal team defending the McCain-Feingold law and a former U.S. Supreme Court law clerk, to give us some idea what’s going on.

Q: Scott, can you remind us why this case is so important?

A: For many decades, corporations have been prohibited by federal law from spending their money directly to support or oppose candidates in federal elections. The Supreme Court in previous decisions has upheld the constitutionality of that prohibition because it exists to protect the system from the corrupting influence of massive corporate war chests. Now the court is considering whether to throw out those precedents and allow unlimited corporate spending on elections. That would be a dramatic change in the rules of the political game and would greatly increase corporate influence over our elected officials.

Q: The case was argued weeks ago. Why haven’t we heard yet what the Supreme Court is going to do?

A: Before it announces its decision, the court prepares written opinions, which are sometimes very lengthy, explaining the results and the reasons for them. Often there are many opinions, as some justices have different reasons than others for supporting the court’s decision and file what are called “concurring” opinions explaining their own take on the issues. Other justices may disagree with the outcome and file “dissenting” opinions. It usually takes weeks—and sometimes months—for all of the writing to be finished.

Q. How does the decision-making process work? Does the court take a lot of time to deliberate while various justices write different opinions, or does it reach a decision first, and then the justices prepare the opinions that explain it?

A: Usually the latter. The court spends surprisingly little time deliberating. Before the argument, the parties to the case, as well as others who participate as “amici curiae,” or “friends of the court,” submit lengthy written arguments, or briefs. The justices, together with their law clerks—mostly young people shortly out of law school—review the briefs. Each justice is likely to discuss the case with his or her own clerks or receive a written memo from a clerk assessing the argument. The whole court then assembles to hear the oral arguments in the courtroom, which in this case took about an hour and a half. At some point during the week of argument, the justices then reassemble for their “conference,” which is generally the only time the justices are all together outside of when they hear argument. The conference is private—no law clerks or other personnel of the court are present. The junior justice (in this case Justice Sonia Sotomayor) generally has the task of being the doorkeeper and passing notes to staff waiting outside if the court needs anything. The justices then go around the table, each stating his or her views about the case briefly and voting on the outcome. It takes a majority of the nine justices—that is, five votes—to arrive at a particular result, though as I mentioned above the justices may have different reasons for that result. Once they’ve voted, the conference ends very quickly and they return to their chambers and tell their law clerks what the vote was. Usually at that point, the case has been decided, even though the decision won’t be released for many more weeks.

Q: Does that mean that the justices have already decided what they’re going to do in the Citizens United case?

A: Probably. The decision was probably made within a day or two of the argument, possibly that very afternoon, depending on when they held their conference. But the decisions made in the conference are not unalterable until the decision is actually handed down by the court. In fact, the Citizens United case itself is an example of how things may change after the conference. When the case was first argued last March, there was probably a vote about how it should be resolved. And the vote at that time probably wasn’t that it should be reargued—if that had been the vote of the conference at that time, the reargument order probably would have been issued immediately. Instead, it came down on the very last day of the court’s term, two months later. That suggests that the court changed its mind about what it wanted to do with the case sometime pretty late in the process.

But with all that said, the bottom line is that there likely was a decision made in early September in the case; we just don’t know what it is yet, and it may change over time as the justices work on the opinions.

Q: Okay, so what happens after the justices take that first vote?

A: The next step is for the chief justice or the senior justice in the majority to assign the drafting of an opinion for the court to one of the justices. If the chief justice is in the majority, he assigns the opinion, but if not, the longest-serving justice in the majority will assign it. In this case, it is pretty certain that the chief justice, John Roberts, will be in the majority whatever the outcome, because he is the swing vote on these kinds of issues.

Sometimes it’s apparent that there will be no majority opinion because although there is a majority for a particular outcome (that is, which side wins and which side loses), there may be sharp disagreement about why. For example, in this case, some justices might end up saying that Citizens United ought to win because the type of broadcast at issue here (on-demand satellite programming) shouldn’t be covered by the law, or because Citizens United is a nonprofit corporation that takes only a little money from business corporations. Others might vote for that same result on the theory that all corporations, even for-profit ones, should have unlimited rights to spend money on campaigns. Similarly, if our side wins the case, different justices might have different reasons for concluding that restrictions on campaign expenditures by corporations are constitutional.

But even when the majority is divided, the chief justice or senior justice in the majority will assign someone to write a lead opinion for the court. Other concurring justices may at that time decide among themselves who will write an opinion expressing their views, or they may decide to wait and see what the lead opinion looks like. Similarly, the senior justice among the dissenters may ask one of the justices to take the lead in preparing a dissent, or the dissenters may plan to write separately.

Q: How do the opinions get written?

A: It varies a bit from justice to justice, but the general practice is that the justice who is assigned to write will work with his or her law clerks to produce a first draft. Some of the justices write their own drafts, which their law clerks then provide suggestions on; others let law clerks do an initial draft, and then edit or rewrite it. The process of producing an initial draft usually isn’t very collaborative with other justices. Sometimes justices do work together on opinions as co-authors, but usually an opinion is attributed to a single justice, and other justices “join” it if they agree. The opinions range from less than 10 pages to dozens and sometimes more than 100 pages long, so they take varying amounts of time to write. Some justices (and some law clerks) tend to be faster than others. But it’s unusual for a draft of an opinion to be ready for circulation much less than two weeks after the conference, and sometimes it takes a lot longer than that.

Q: What happens once the opinion is drafted?

A: At that point, it is formatted as if it were ready to be printed, and then circulated to the chambers of the other justices. The custom of the court is to circulate a draft opinion simultaneously to all the justices, whether they are part of the majority or not. Sometimes, however, justices may give previews to some of the other justice on their side in order to get input into what they will circulate to the full court.

Q: What do the other justices do when they receive the draft opinion?

A: Well, of course they read it, and so do those of their law clerks who have worked with them on the case. Then they send a memo to the author, usually cc’d to the rest of the court, giving their reaction. Sometimes the memo will just tell the author that another justice wants to join the opinion. Sometimes the memo will say that a justice plans to write a dissent or concurring opinion. A justice who expects to join in a dissent or concurrence but doesn’t plan to write it will usually send a memo saying “I will await further writing.” And sometimes a justice will respond with a memo making more or less extensive comments and suggestions for editing of the draft opinion. The reaction of the other justices often will lead the author of an opinion to revise it in order to attract more sign-ons, and multiple drafts of the lead opinion may circulate as the author tries to get a majority for it.

Q. When are the concurring and dissenting opinions written?

A: Usually they are prepared once the lead opinion has circulated, because they often devote a good deal of space to shooting at the arguments in that opinion. They are circulated in the same way as the lead opinion, and justices who haven’t yet signed on to the opinion for the court may send memos joining the separate opinions and/or proposing changes in them. And it often happens that once a dissent or concurrence has circulated, some justice will realize that his or her own views are different both from the lead opinion and the dissent or concurrence, and will write yet another opinion. And so on. It can take some time.

The lead opinion also usually is revised to respond to the points made in the concurring and/or dissenting opinions, and they then may respond in kind. Sometimes it degenerates into a battle of the footnotes, and it can be difficult to stop the process until someone is satisfied to let someone else have the last word.

Q: When are the decisions finally released?

A: Well, it doesn’t ultimately happen until everyone has either written or signed on to an opinion, and all the authors of the opinions are satisfied with everything in them, down to the punctuation. Sometimes in the process, a dissenting opinion attracts enough votes to turn into a majority, or what was supposed to be a majority opinion may turn out to be merely a plurality opinion, or even less than a plurality opinion. The lead opinion for the court sometimes attracts fewer votes than a concurring opinion. In that case, the narrowest ground for the outcome is taken to be the court’s “holding.” But in any event, the opinions can’t issue until they’re finished and every justice has chosen which one he or she agrees with.

Once that happens, the opinions are printed up, and they are announced by the court on some day when it is “sitting”—that is, when it has convened either to hear arguments, or just to hand down orders and opinions.

During most of the court’s term, it will hear arguments two weeks a month and sit on Mondays, Tuesdays and Wednesdays of those weeks. Opinions usually are announced at the Tuesday and Wednesday sittings. The court also usually sits on the Monday of one non-argument week each month to hand down orders and opinions.

Q: So what can we expect in this case?

A: Well, the court is likely to be divided, and there will undoubtedly be multiple opinions. And the issues are of a magnitude that the opinions will probably be lengthy. So it’s no surprise that they haven’t yet been issued. I would expect the most likely time for the opinion to come out would be December, as I think the reason the court heard the reargument before its fall term formally started was to try to get the decision out before the 2010 election campaigns—which the opinion will have a major effect on one way or another—really get going. It’s possible that the opinions could come out earlier than that, but there will be a lot of writing to be done before they are released. One benchmark is that the 2003 decision on the constitutionality of the McCain-Feingold law, which was also argued in the first week of September, came out shortly before Christmas. (The decision, of course, is one of the ones the court is now thinking of tossing out the window.)

The bottom line is that the decision could come down on any of these days: Nov. 3, 4, 10, or 16, or Dec. 1, 2, 8, 9, or 14.

Q: Is there anything else you’d like readers to know?

A: Well, I think the take-away point is that the silence so far shouldn’t lead us to forget that this huge decision is still looming out there. The die is probably already cast; we just have to wait to learn what the decision is, and what implications it will have for our democracy. And we have to—and will—be ready to respond with actions to try to restore our political process if the worst happens and the court throws out the precedents that currently protect our political campaigns from turning into corporate free-for-alls.