20 January 2010

SCOTUS Preview

The U.S. Supreme Court will probably announce its decision in the Citizen's United campaign finance case tomorrow at a special 10 a.m., Thursday session. This case will probably invalidate many state and federal campaign finance laws including those in Colorado.

The facts are extreme and it could have been treated as a minor case and distinguished way from the core issues of campaign finance. It involves a documentary movie designed to slam Hillary Clinton in the 2008 election that the Federal Elections Commission was interested in regulating as a political campaign through the independent expenditures rule.

But, the case is unlikely to be decided narrowly, because after hearing oral argument the U.S. Supreme Court explicitly asked for reargument of the question of whether or not its leading campaign finance precedents should be overruled. There is a good chance that there will be an oral dissent from the bench from a liberal justice. There is a good chance that the decision will overturn or dramatically narrow two prior U.S. Supreme Court campaign finance precedents that had upheld the constitutionality of much of the current legal campaign finance regime.

There is a good chance that bans on union and corporate contributions will cease. It is conceivable that all dollar limitations and disclosure requirements for independent expenditures (i.e. campaigning by non-candidates, particularly on the eve of elections) will be held unconstitutional.

It seems nearly certain that some elements of existing campaign finance law will be held unconstitutional, and the real question is merely how sweeping the decision will be, invalidating only a few pieces of it, or all of it.

The First Amendment political rights involved in this case apply equally to state and federal campaign finance laws, even though the campaign finance law in question in this case is a federal one. So it is very likely that some or all of Colorado's campaign finance laws will be invalidated by the Citizen's United decision, although lawyers here in Colorado will have to digest the opinion and probably litigate over its application to Colorado, in order to determine what impact it has here.

I made a more in depth analysis of the case on federal and Colorado law following the second round of oral arguments in the case.

Stay tuned and we will find out what happens, which could, of course, be entirely different than what most people are anticipating.


Anonymous said...

On the contrary, the fact that it's taken so long to issue the decision might suggest that those in favor of a sweeping ruling could not get the votes for it. Thus, a narrow decision might issue.

Andrew Oh-Willeke said...

Reasonable theory, but the ruling now that it has come out, looks quite sweeping.