The Court Bides Its Time in Susan B. Anthony

June 17, 2014
posted by Bob Bauer

Granting the differences between the two cases,  it is somewhat remarkable that a Supreme Court in a hurry to affirm corporate free speech rights in Citizens United is proceeding at a leisurely pace, in Susan B. Anthony List v. Driehaus, in adjudicating the constitutionality of Ohio’s “false campaign statement” law.  Maybe any complaint along those lines should yield to relief that the Court decided the case—a political campaign case!—unanimously.   And as Rick Hasen has pointed out, the safest bet was that the Court would do as it did, clearing the way for a pre-enforcement challenge while putting off judgment on the core constitutional issue.

The Court could have struck the statute down, or if not prepared to go that far, it might have transmitted a clearer statement of its intention to do so in the future.  Instead it spoke vaguely to its expectations of the lower court on remand.  It said a bit, not all that much, about its perspective on the constitutional issues presented by Ohio’s law. So lawyers have to return to work, expenses have to be incurred, and time has to be wasted, before a decision is made about the constitutionality of this law.

Yet it is a law that is so plainly unconstitutional that it seems odd to keep it in place and available to anyone who in this statute’s golden years wishes to make mischief with it. Does anyone seriously doubt that the state may not take criminal action against someone for making a false statement, as the state judges it to be, about a political candidate or public official’s voting record, or just “concerning” such a  candidate, in order to influence an election?  Under a process, no less, that authorizes anyone, including political adversaries, to file a complaint and that expedites probable cause determinations, hearings and referrals for prosecutions within weeks of primary and general elections?

The Court would not even conclude that the threat of administrative proceedings alone was sufficient to confer standing. Only by combining this threat with the risk of criminal prosecution was it confident that the plaintiffs had successfully pled “injury in fact.”  It is a surprisingly equivocal performance.

In Citizens United, the Court was presented with a similar choice between a quick or delayed engagement with the core and, to the mind of some, urgent constitutional question.  The Justices were urged to consider a number of narrower grounds of victory for Citizens United, hewing closely to the facts of the case.  The Court declined these alternatives, discarded the Austin precedent, and established corporate independent spending rights as a requirement of upholding core First Amendment values.

In Susan B. Anthony List v. Driehaus, the litigation goes on. It is not clear why it must, or why the Court would not offer the lower courts more of a clue to its constitutional position—except, perhaps, if this reserve was the price of unanimity.  So one wonders and one worries: perhaps there is disagreement on the Court about the underlying constitutional question.

Category: The Supreme Court

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