Anxiously Awaiting Citizens United Arguments

In preparation for the Supreme Court’s special session to rehear the Citizens United case, the news media and advocacy groups have provided an abundant amount of reading material. As National Journal column notes, "the case has generated a virtual cottage industry of opinion articles, blog postings, public briefings and even grassroots organizing around the issue of corporations’ role in political campaigns." There are more than 2,000 pages worth of arguments from 53 amicus briefs, according to an analysis by the First Amendment Center.

The New York Times notes that the case "comes at a crucial historical moment, as corporations today almost certainly have more to gain or fear from government action than at any time since the New Deal."

The arguments will address whether it should overturn a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld the constitutionality of banning independent corporate campaign expenditures. The Court will also consider the 2003 decision in McConnell v. FEC, upholding the electioneering communications provision of the Bipartisan Campaign Reform Act (BCRA).

The question arises, is this government regulation of speech an attack on the First Amendment or a way to level the playing field and a protection against corruption? Corporations may now participate in federal campaigns through contributions to political action committees, which are regulated with contribution limits and disclosure requirements. If the Court does in fact overturn precedent, corporations and labor unions could be able to use their treasury money to make independent expenditures in support of candidates.

Nevertheless, it is hard to foretell the arguments and the outcome exactly, but many are trying. And many would like to predict what a campaign season would be like if the court were to overturn limits on corporate and union spending in federal election campaigns. Scalia, Thomas and Justice Anthony Kennedy have said in the past they would overrule both, while both Roberts and Alito have expressed respect of holding up precedent. In the meantime, we just have to wait until Sept. 9. The audiotape will be released for public broadcast shortly after the argument ends.

(Amanda Adams 09/04/09)

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