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September 08, 2009

Supreme Court Reconsidering McCain-Feingold

Tomorrow, the Supreme Court will hear argument for the second time in the case Citizens United v. FEC. During the primary two years ago, Citizens United created and wanted to distribute a documentary about Hillary Clinton. It was actually set to be broadcast when the FEC stepped in and banned it under the anti-freedom McCain-Feingold campaign finance law.

The legal blogs are aflutter because it is rare for the Court to re-hear a case and this one may lead to the overthrow of two prior precedents. These cases are some of the most abominable and confounding opinions ever issued by the Supreme Court. One of the cases, McConnell v. FEC has three opinions, two dissents, and three more opinions that can only be characterized as "other." It should be knocked down on that ground alone.

Campaign finance laws like McCain-Feingold suppress speech. Bush 43 should never have signed it and the Court should be ashamed that it upheld it the first time around. I'm glad they're taking a second look.

Today's must-read comes from one-time Republican short-lister for the Supreme Court Ted Olson. Olson is in the news more often these days for his federal Prop 8 lawsuit, but he is a stellar constitutional law expert and his experience in front of the Supreme Court is unmatched. He will be arguing this case tomorrow morning (the audio will be available sometime in the afternoon). Writes Olson:

Persons of modest means often band together to speak through ideological corporations. That speech may not be silenced because of speculation that a few large entities might speak too loudly, or because some corporations may earn large profits. The First Amendment does not permit the government to handicap speakers based on their wealth, or ration speech in order somehow to equalize participation in public debate.

Tomorrow's case is not about Citizens United. It is about the rights of all persons—individuals, associations, corporations and unions—to speak freely. And it is about our right to hear those voices and to judge for ourselves who has the soundest message.

Read the whole thing.

Also, for fun I include the Supreme Court Clerk's explanation of the Court's holding in McConnell below the fold.


Stevens and O’Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA §305, and in which Thomas, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O’Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion Scalia, J., joined as to Parts I, II—A, and II—B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which Thomas, J., joined with respect to BCRA §213. Rehnquist, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA §305, in which Ginsburg and Breyer, JJ., joined.

Eeesh.

digg this
posted by Gabriel Malor at 01:21 PM

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