Citizens United attracts many ‘friends’

Monday, August 24, 2009

Justice Sonia Sotomayor will be busy preparing for a Supreme Court hearing even before the new Court term formally begins. And so will her clerks and the clerks in the other chambers. In fact, all the chambers will be on alert as the Court and its staff work through upward of 2,000 pages of briefs in a single case held over from last term. It concerns an important First Amendment issue, as evidenced by all the attention the case is getting before it is argued … again.

On June 29, the last day of the regular 2008-2009 term, Supreme Court and First Amendment watchers eagerly awaited the Court’s opinion in Citizens United v. FEC, a case to determine the constitutionality of the Bipartisan Campaign Reform Act’s prohibition on advertisements for political movies/documentaries within a certain period before an election if they are deemed to be “electioneering communications.” Instead of handing down a decision, however, the Court took the unusual step of scheduling the case for rehearing on Sept. 9, before the fall Court term begins.

The Court requested that the parties focus their attention on whether it should adhere to two prior campaign-finance precedents, Austin v. Michigan Chamber of Commerce (1990) and part of McConnell v. FEC (2003). Given that, numerous lawyers and interest groups, on both sides of the divide, are lining up to share their views as “friends of the Court.”

Amicus briefs: more & more 'friends'
The amicus curiae (“friend of the court”) brief has a history in U.S. law that dates to the 1823 case Green v. Biddle. The briefs serve to inform the court of possible long-term effects of a ruling. They represent another form of public disclosure or public comment — an exercise in First Amendment speech.

In recent years the role of amicus participation has altered and expanded. Amicus parties are no longer expected to be impartial friends of the Court but instead are often seen as representing discrete political constituencies. Coinciding with this evolution of the role of the amicus brief has been a steady increase in its use. In his book Friends of the Supreme Court (2008), University of North Texas political science professor Paul M. Collins has researched usage of amicus briefs in the Supreme Court and has charted the average number of briefs from:

  • .5 briefs/case in the 1950s, to
  • 2 briefs/case in the 1970s, to
  • to almost 6 briefs/case in the 1990s-present.

Whether this increase is desirable is debatable. According to Judge Richard Posner of the 7th U.S. Circuit Court of Appeals, amicus briefs “can be a real burden on the court system” in that they require both judges and parties to engage in onerous and often extraneous reading.(See National Organization for Women v. Scheidler, 223 F.3d 615, at 616 (7th Cir. 2000).) Supreme Court Justice Samuel Alito, while sitting as a member of the 3rd Circuit Court of Appeals, adopted the contrary pro-amicus position on the ground that amicus briefs often add substantial value, and even when they do not, they do not squander judicial resources in the way Posner suggested. (See Neonatology Associates, P.A. v. Commissioner of Internal Revenue, 293 F.3d 128 (3rd Cir. 2002).)

No matter who has the better of that debate, it is indisputable that the Supreme Court has been receiving more and more amicus briefs in recent years. The four most heavily “amicused” cases have been decided in the past 20 years. In Gratz v. Bollinger and Grutter v. Bollinger, 2003 cases adjudicating the constitutionality of affirmative action in higher education, 102 amicus briefs were filed. In Webster v. Reproductive Health Services, a 1989 case involving abortion, 78 amicus briefs were filed. Last year, in District of Columbia v. Heller, a case implicating the Second Amendment right to own a gun, 67 briefs were filed.

First Amendment 'friends'
In the First Amendment context, before Citizens United, the most amicus attention received by a single case had been the 39 briefs filed in Zelman v. Simmons Harris (2002), wherein a school-voucher program was challenged on establishment-clause grounds. As for freedom of expression, the most amicus briefs filed was the 37 in Crawford v. Marion County Election Board (2008). Within the sphere of campaign-finance law the previous high-water mark was 22 amicus briefs in McConnell v. Federal Election Commission (2003).

Citizens United has shattered those records in the First Amendment arena with 53 amicus briefs. Most of this amicus attention (41 of the 53 briefs) has come in the form of supplemental briefs after the Supreme Court’s ordered rehearing of the case. However, that doesn’t lighten the load for the justices and their clerks, who will be responsible for those 2,000 pages of briefs written by almost 200 lawyers.

Among the amicus contributors one can find:

  • Nearly 100 public-interest groups.
  • 26 states.
  • Eight former FEC commissioners.
  • Three U.S. senators, four representatives, two former representatives and a retired state Supreme Court chief justice.

Additionally, several other interested individuals and groups have filed briefs.

Groups involved
The groups that filed briefs cover a wide range of the ideological spectrum. Below is a sampling of some of the groups involved on each side.

On behalf of Citizens United:

  • American Civil Liberties Union
  • CATO Institute
  • 10 broadcasters associations from various states
  • Free Speech Coalition
  • Goldwater Institute
  • National Rifle Association

On behalf of the FEC:

  • Asian American Legal Defense and Education Fund
  • Center for Political Accountability
  • Committee for Economic Development
  • Democratic National Committee
  • League of Women Voters

Citizens United’s amicus army outnumbers the FEC’s by a ratio of about 2 to 1. The quality of amicus briefs doesn’t suffer despite the quantity of participants. The parties’ attorneys are former Solicitor General Ted Olson (on behalf of Citizens United) and current Solicitor General Elena Kagan (on behalf of the FEC). Notable amicus advocates include another former solicitor general, Seth Waxman, authoring a brief for Sen. John McCain, R-Ariz., in defense of the FEC’s positions, and renowned First Amendment attorney Floyd Abrams arguing on behalf of Sen. Mitch McConnell, R-Ky., in support of Citizens United’s position.

Future cases will show whether Citizens United represents a reinvigoration of public interest in First Amendment law or merely the confluence of a hot-button political topic (as with affirmative action or abortion) and the Supreme Court’s unusual request for a rehearing.

It also remains to be seen what effect such amicus participation will have, if any, on the justices and the outcome of the case. Ideally, the justices would discharge the judicial responsibility, to which Posner alluded in the NOW case, of assiduously reading every brief that they permit to be filed. In about 2,000 pages the justices and their clerks could get through Tolstoy’s entire War and Peace (1,225 pages) and most of his Anna Karenina (864 pages).

More realistically, most of the judges and their clerks will, as Justice Alito suggested in Neonatology Associates, quickly detect the unhelpful amicus briefs so that they “do not claim more than a very small part of a Court’s time.”

Adam Ezra Schulman is a law student at Georgetown University Law Center and an intern at the First Amendment Center in Washington, D.C.

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