Cite as: 558 U. S. ____ (2010)
11
Opinion of STEVENS, J.
a failure. In this respect, too, the majority’s critique of
line-drawing collapses into a critique of the as-applied
review method generally.8
The majority suggests that, even though it expressly
dismissed its facial challenge, Citizens United neverthe
less preserved it—not as a freestanding “claim,” but as a
potential argument in support of “a claim that the FEC
has violated its First Amendment right to free speech.”
Ante, at 13; see also ante, at 4 (ROBERTS, C. J., concurring)
(describing Citizens United’s claim as: “[T]he Act violates
the First Amendment”). By this novel logic, virtually any
submission could be reconceptualized as “a claim that the
Government has violated my rights,” and it would then be
available to the Court to entertain any conceivable issue
that might be relevant to that claim’s disposition. Not
only the as-applied/facial distinction, but the basic rela
tionship between litigants and courts, would be upended if
the latter had free rein to construe the former’s claims at
such high levels of generality. There would be no need for
plaintiffs to argue their case; they could just cite the con
stitutional provisions they think relevant, and leave the
rest to us.9
——————
8 The majority’s “chilling” argument is particularly inapposite with
respect to 2 U. S. C. §441b’s longstanding restriction on the use of
corporate general treasury funds for express advocacy. If there was
ever any significant uncertainty about what counts as the functional
equivalent of express advocacy, there has been little doubt about what
counts as express advocacy since the “magic words” test of Buckley v.
Valeo, 424 U. S. 1, 44, n. 52 (1976) (per curiam). Yet even though
Citizens United’s briefs never once mention §441b’s restriction on
express advocacy; even though this restriction does not generate
chilling concerns; and even though no one has suggested that Hillary
counts as express advocacy; the majority nonetheless reaches out to
opine that this statutory provision is “invalid” as well. Ante, at 50.
9 The majority adds that the distinction between facial and as-applied
challenges does not have “some automatic effect” that mechanically
controls the judicial task. Ante, at 14. I agree, but it does not follow
that in any given case we should ignore the distinction, much less