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Citizens United v. FEC: Reargued

Yesterday, I previewed the reargument of Citizens United v. Federal Election Commission, and now the arguments are in. The transcript is here. Or listen to the audio.

OpenSecrets.org has a good report on the debate. It seems that five Justices are inclined to overturn current law limiting corporate spending in political campaigns:

Those five … are Samuel Alito, Clarence Thomas (who did not speak during the proceedings), Anthony Kennedy, Roberts and Scalia. That leaves a 5-4 vote, with Ginsburg, Sotomayor, Stephen Breyer and John Paul Stevens largely in support of current campaign finance laws. Kennedy dissented in Austin and could turn that dissent into the majority view now… . Kennedy left little question about his view on the matter during today’s oral arguments.

When the Supreme Court asked to re-hear oral arguments in this case, the justices specifically posed the question whether they should overturn one previous campaign finance case, Austin v. Michigan Chamber of Commerce (1990), and the parts of another, McConnell v. Federal Election Commission (2003), that uphold the regulation of corporate spending in elections.

In Austin, the Court found that electioneering communications rules were in the government’s interest to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.”

The Hill reports on the McCain-Feingold press conference outside the Supreme Court following the reargument:

After the arguments, McCain and Feingold both blasted justices for being dangerously out of touch.

“The questioning shows a real disconnect, a strong disconnect between the justices and political reality,” McCain said at the press conference.

“I wish that one of the justices who were standing up for people’s First Amendment rights had ever run for county sheriff,” he added. The justices showed an “extreme naïveté of the influence of corporate money and soft money.”

The Supreme Court upheld the McCain-Feingold law several times while former Justice Sandra Day O’Connor served on the court. O’Connor was the Senate majority leader in the Arizona state Senate; the court now has no member who has held elected office.

O’Connor’s departure and the arrival of Alito has shifted the balance of the court against McCain-Feingold, according to people on both sides of the debate.

Feingold warned that, should the court roll back sections of McCain-Feingold by overturning Austin and McConnell, it would leave Congress with “no ability” to reform the campaign finance system.

For me, this is very troubling. The Court may find a way to rule narrowly in this case, without drastically altering the law. But if not, my next post on this topic will be titled Notes from the Corpocracy. The Court’s opinion should appear later this year.

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