Needless to say, we will not be seeing too many majority opinions in campaign finance cases citing the sober-minded Elihu Root any time soon. With today’s Supreme Court’s announcement that it will rehear argument in Citizens United and the retirement of Justice Souter, the Court is now poised to consider the huge questions of whether “the Court [should] 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.” The reargument will come in early September after additional briefing. Summer vacations have been decimated.
The raw politics of the matter are tantalizing. Rick Hasen seems to think that activating the “corporate fundraising spigot” would help Republicans counteract President Obama’s ability to raise hundreds of millions of dollars for his reelection campaign. But there are other websites for politics that can probe that theory.
Today’s turn of events also generated dueling press releases on the merits of the matter. The Campaign Legal Center noted the dangers of “vast amounts” and “vast commercial funds”; their potential to “distort” and “corrupt” our political system; and that a reversal would be a “grave disservice to our democracy.” The Center for Competitive Politics adds that overruling Austin would strengthen First Amendment rights and promote participation in the political system.
Given the alignment of the Court and speculation about what prompted the reargument, it’s safe to say that it’s going to be a long, hot summer for proponents of Austin and the Bipartisan Campaign Reform Act’s electioneering communications provision.