Tuesday, June 30, 2009

Notable Sleeper

Lots of big legal news yesterday: an important Supreme Court decision about employment discrimination, and Bernie Madoff getting 150 years for his fraudulent Ponzi scheme. But perhaps most important of all is the short, easily missed Supreme Court order in Citizens United v. Federal Election Commission. The order sets the case for reargument and asks the parties to address the question, "For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. §441b?"

When the Court asks parties to tell it whether it should overrule a previous case, it's usually already decided to do so. In McConnell, Justice O'Connor joined a 5-Justice opinion upholding section 203; Justice Kennedy dissented. With Justice O'Connor replaced by Justice Alito and the vote of swing Justice Kennedy already known, it's not looking good for section 203.

Section 203 prohibits corporations and labor unions from using their general treasury money to fund electioneering communications. Look out for this section to be declared unconstitutional this fall. After that, stand out of the way of the tidal wave of corporate and union money that will flood election campaigns.


Anonymous said...

Doesn't the Supreme Court resist reaching constitutional issues unless necessary? I'm not that familiar with this case, but I thought it was a question of whether federal election laws applied to a documentary. How is the constitutionality of a prohibition on contributions from corporations and labor unions bound up in any decision the Court might make?

Jon Siegel said...

Good question. I don't know the answer either, because I don't know the details of the case. You are correct that the Court generally avoids constitutional issues where it can, so either (1) they've decided that the statute applies and therefore can't avoid any constitutional challenges to the statute, or (2) they are looking for an opportunity to reach the constitutional issue and will depart from their normal practice for essentially political reasons. Yes, sometimes they do that!