October 05, 2009

As the October 2009 Supreme Court Term Begins, One 2008 Case Remains Undecided

That case, of course, is Citizens United, about which I've spilled a lot of virtual ink. I continue to believe we could see an opinion by mid-November, but there is no deadline.

One theme in my writing on the Roberts Court and campaign finance is how crucial the replacement of Justice O'Connor with Justice Alito has been. We've gone from a period of the Court's greatest deference to campaign finance regulation to its period of greatest skepticism and deregulation. That theme appears in this Washington Post report on Chief Justice Roberts, Justice Alito, and the First Amendment cases. It includes this quote from Walter Dellinger: "I think we may look back in about 2020 and see that the replacement of Justice O'Connor by Judge Alito had the greatest impact on the court of any appointment in more than a quarter of a century."

Jonathan Turley also writes about the case in an LA Times oped today. The oped includes this statement that makes no sense to me: "For many free-speech advocates, it is hard to declare this film to be electioneering but not other films, such as liberal Michael Moore's anti-Bush documentary, 'Fahrenheit 9/11.'"

No one has claimed that "Hillary the Movie" should be treated differently than "Farenheit 9/11." Had Moore tried to broadcast this film before the election in the same way as Citizens United did, it would have raised the same questions. Indeed, if my memory is correct, Moore's advertising run before the election did not feature Bush's name or likeness to avoid the ad being subject to the BCRA EC disclosure rules.

Posted by Rick Hasen at October 5, 2009 08:36 AM