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Today, the Supreme Court held an unusual second hearing in a case, Citizens United v. Federal Election Commission, that could overturn campaign finance restrictions that prevent corporations from spending money on political campaigns. Legal Times had a reporter, Tony Mauro, at the hearing today who suggests that the Justices are prepared to issue a ruling that would dramatically change the way American elections are contested.
After an extraordinary 90 minutes of oral argument in Citizens United v. Federal Election Commission, it appeared that four justices -- Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito Jr. -- were ready to vote against the commission, which enforces the ban, on First Amendment grounds. A fifth justice, Clarence Thomas, asked no questions as is his custom, but he has been critical of the precedents in the past and is counted as a sure vote against most forms of campaign regulation.Justice Kennedy, who often plays a swing vote role, spoke repeatedly of "an ongoing chill" on the speech of corporations and other harms caused by the McCain-Feingold law that banned independent corporate spending on campaigns. Alito, also a crucial vote, skeptically asked whether the 27 states that allow corporate expenditures in their campaigns have been "overwhelmed with corruption." And Roberts seemed hostile to government arguments, asserting that the protection of First Amendment rights should not be placed in the hands of "FEC bureaucrats."Yipes. Perhaps newly seated Justice Sonia Sotomayor will be very convincing in the Court's discussions.There was also a bonus feminism-and-the-courts issue surrounding the new Solicitor General -- the top Justice Department lawyer who represents the government before the Supreme Court -- Elena Kagan:
Kagan's appearance at the Court also answered a question that has been a matter of debate within her office and among commentators ever since she became the first female solicitor general in the nation's history: whether she would wear the morning coat with tails that male SGs have worn for generations. Kagan did not wear a morning coat to Wednesday's argument, instead sporting a businesslike black pantsuit with an open-collared white blouse. As she said in this interview with us in May, the decision whether or not to break with tradition was "complicated" but the Court had signaled to her that the decision was hers to make. Some traditionalists argued in favor of the special garb, which they say underscores the unique status of the solicitor general before the Court. Some but not all female assistants and deputies in the SG's office, as well as the Court's marshal Pamela Talkin and women in the Court clerk's office wear morning coats specially tailored for women.
-- Tim Fernholz
