Rick Hasen writes now about option open to the Supreme Court in Citizens United if it wishes to avoid the larger constitutional issues.  Citizens United notes in its brief that the Commission's electioneering communications regulation could be read to exclude from its reach video-on-demand viewing of political films like Hillary: the Movie.  In their brief, Senators McCain and Feingold offer this same alternative. 

      Neither brief devotes much time to this escape through statutory and regulatory interpretation; each, however, considers a resolution through constitutional avoidance better than its own version of the "worst case" outcome.  This could well prove the way out, if Rick is right that the Chief Justice and Justice Alito have in mind to "move cautiously" on campaign finance issues. 

     Putting things off for another day has its strong points.  Also its vices, some might say, and the roots of each are, in one respect, the same.  If the Court dodges the issue, campaign finance doctrine is left in its highly unsatisfactory state.  Major questions will remain unanswered, and they will be sure to be put to the Court again.  If the Court takes the constitutional questions present head-on, it might—taking history as the guide—plunge the doctrine into further confusion.  Little clarity has emerged from recent Court labors in this area, and there is no reason to think that this round will end better. 

     It is not hard to imagine that the Court would want, in this day, to keep Austin v. Michigan Chamber of Commerce (494 U.S. 652 (1990)) in place and not suddenly let loose on the political landscape a surge of "independent" corporate express advocacy.  Austin applies to any corporation, profit or nonprofit.  A decision to give the corporate world fresh political license would be a bold—some will say, perverse—choice for the Chief, badly out of step with the times.

     Preserving the rules for nonprofit activity under FEC v. Massachusetts Citizens for Life (479 U.S. 238 (1986)) might  cause the Court more unease.  Under current law, a nonprofit organized solely for ideological purposes qualifies to spend "independently" only if it receives not a penny of corporate or union money.  If the Court is tempted to adjust contemporary campaign finance doctrine, this may be where the temptation proves irresistible.

      The more one thinks, however, of what may come of the Court’s encounter with these questions, the better avoidance looks.

Bob Bauer