Free Speech v. Campaign Finance Laws:
Citizens United v. Federal Election Commission, Still, it was somewhat of a surprise when, on the
No. 08-205, concerns the validity of the limita- last regular day of the Court’s term in June 2009,
tions placed on corporate-funded election broad- the Court announced it would rehear the case on
casts by the McCain-Feingold campaign finance September 9. More surprising, the Court asked
law in the period before elections. The case, fea- for supplemental briefing on the following ques-
turing a documentary attacking Hillary Rodham tion: “For the proper disposition of this case,
Clinton, was argued before the Supreme Court in should the Court overrule either or both Austin
March 2009, and media accounts confirm that v. Michigan Chamber of Commerce, 494 U.S.
the government’s case seemed threatened when 652 (1990), and the part of McConnell v. Federal
the Deputy Solicitor General had trouble answer- Election Comm’n, 540 U.S. 93 (2003), which
ing a hypothetical question about the regulation addresses the facial validity of Section 203 of the
of books containing “the functional equivalent of Bipartisan Campaign Reform Act of 2002, 2
express advocacy.” Adam Liptak, Justices U.S.C. §441b?” Citizens United v. FEC, Order,
Consider Interplay Between First Amendment 2009 WL 1841614 (Jun. 29, 2009).
and Campaign Finance Laws, N.Y. Times, Mar.
24, 2009, http://www.nytimes.com/2009/03/25/ If the Court were going to decide the case on
washington/25scotus.html (“A quirky case about narrow statutory grounds, such as a ruling that
a slashing documentary attacking Hillary video-on-demand is not properly classified as an
Rodham Clinton would not seem to be the most electioneering communication, reargument on
obvious vehicle for a fundamental re-examina- the constitutional question would be unneces-
tion of the interplay between the First sary. The order indicates a Court that is at least
Amendment and campaign finance laws. But by seriously considering the question. See Richard
the end of an exceptionally lively argument at L. Hasen, The Supreme Court Gets Ready to
the Supreme Court on Tuesday, it seemed at Turn on the Fundraising Spigot, Slate, Jun. 29,
least possible that five justices were prepared to 2009, http://www.slate.com/id/2221753/, and it
overturn or significantly limit parts of the court’s stands in sharp contrast with the Court’s state-
2003 decision upholding the McCain-Feingold ment a week before the order in Northwest
campaign finance law, which regulates the role of Austin Municipal Utility District Number One v.
money in politics.”); Dahlia Lithwick, The Holder, 129 S.Ct. 2504 (2009), that “[o]ur usual
Supreme Court Reviews Hillary: The Movie, practice is to avoid the unnecessary resolution of
Slate, Mar. 24, 2009, http://www.slate.com/id/ constitutional questions.”
2214514/ (“But it seems to me that all this talk
of book banning and government regulation of The simultaneous supplemental briefs were not
signs in Lafayette Park is a pretty good way to available by PREVIEW’s deadline. The original
get all five of them in the mood to run down yet case preview written before the March 2009
more restrictions on political advertising. And argument appears on page 473.
maybe even back up and do it again.”).
— Richard L. Hasen