Legal Commentary

Where is Citizens United?

By John Elwood

Three new grants but no new opinions today from the Supreme Court.

Of particular note, the Court is still ruminating on Citizens United, the election speech case argued back on September 9. It has now taken the Court longer to address the one as-applied challenge in Citizens United than it did to address the slew of challenges to the McCain-Feingold law back in 2003 (McConnell v. FEC was argued on September 8, 2003, and the opinions were announced on December 10 that year).

Given the Court?s demonstrated wish to expedite a decision in the case before the upcoming primaries (as shown by the fact that the Court went to the trouble of holding a special sitting in September), the length of time to get a decision out suggests that there will be more than just a majority opinion and a dissent?I suspect there will be a substantial third opinion, and perhaps more.

I am insufficiently familiar with campaign finance law to know whether here is much of a possibility here that the Court will fail to obtain a majority of votes for a single opinion. Enough of the Justices have written separately on this area that someone who knows more about election law would have a better grasp of how the votes might be shaking out. But at a minimum, I suspect a substantial concurrence, if not a concurrence in the judgment, will be in the offing.

Full post as published by The Volokh Conspiracy on December 14, 2009 (boomark / email).