Unprecedented
Watching the Supreme Court make its campaign finance jurisprudence disappear.
By Dahlia Lithwick
Slate.com
Posted Wednesday, Sept. 9, 2009
Early in this morning's special-edition September oral argument in Citizens United v. Federal Election Commission—known far and wide as the Hillary: The Movie case—Justice Antonin Scalia stops newbie Solicitor General Elena Kagan as she argues that the court has never before questioned 100 years of congressional efforts to limit corporate spending in elections. "We are not," he growls at Kagan, "a self-starting institution. We only disapprove of something when someone asks us to."
Erm. Kinda.
As Kagan and her colleague Seth Waxman argue this morning, if the court uses this case to overrule either McConnell v. FEC (which upheld the McCain-Feingold campaign finance law in 2003) or Austin v. Michigan Chamber of Commerce, the 1990 case McConnell reaffirmed, it will be one of the self-starting-est things the Roberts Court has ever done.
When we first met this case, it involved a narrow question about whether a 90-minute documentary attacking Hillary Clinton could be regulated as an "electioneering communication" under McCain-Feingold. The relevant provision bars corporations and unions from using money from their general treasuries for "any broadcast, cable or satellite communications" that feature a candidate for federal election during specified times before a general election. A special three-judge U.S. District Court panel agreed with the FEC that the movie could be regulated.* Citizens United, the conservative, nonprofit advocacy group that produced the film, appealed. The issue last spring was whether a feature-length documentary movie was core political speech or a Swift Boat ad. But the court surprised everyone when it ordered the case reargued in September, this time tackling the constitutionality of McConnell and Austin.
Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas are already on record wanting to overturn these cases. Justice Samuel Alito and Chief Justice John Roberts have been inclined to wait. The question today is whether we wait no more.
(Continued here.)
By Dahlia Lithwick
Slate.com
Posted Wednesday, Sept. 9, 2009
Early in this morning's special-edition September oral argument in Citizens United v. Federal Election Commission—known far and wide as the Hillary: The Movie case—Justice Antonin Scalia stops newbie Solicitor General Elena Kagan as she argues that the court has never before questioned 100 years of congressional efforts to limit corporate spending in elections. "We are not," he growls at Kagan, "a self-starting institution. We only disapprove of something when someone asks us to."
Erm. Kinda.
As Kagan and her colleague Seth Waxman argue this morning, if the court uses this case to overrule either McConnell v. FEC (which upheld the McCain-Feingold campaign finance law in 2003) or Austin v. Michigan Chamber of Commerce, the 1990 case McConnell reaffirmed, it will be one of the self-starting-est things the Roberts Court has ever done.
When we first met this case, it involved a narrow question about whether a 90-minute documentary attacking Hillary Clinton could be regulated as an "electioneering communication" under McCain-Feingold. The relevant provision bars corporations and unions from using money from their general treasuries for "any broadcast, cable or satellite communications" that feature a candidate for federal election during specified times before a general election. A special three-judge U.S. District Court panel agreed with the FEC that the movie could be regulated.* Citizens United, the conservative, nonprofit advocacy group that produced the film, appealed. The issue last spring was whether a feature-length documentary movie was core political speech or a Swift Boat ad. But the court surprised everyone when it ordered the case reargued in September, this time tackling the constitutionality of McConnell and Austin.
Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas are already on record wanting to overturn these cases. Justice Samuel Alito and Chief Justice John Roberts have been inclined to wait. The question today is whether we wait no more.
(Continued here.)
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