Prof. Garnett on Supreme Court’s controversial political-speech decision

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Rick Garnett fall08 According to Prof. Richard Garnett, among the Supreme Court’s most important decisions of its 2008-09 Term was its decision not to decide – at least, not yet – the case of “Citizens United v. Federal Election Commission,” also known as the “Hillary: The Movie” case. Today, the Justices called for the case to be re-argued in September, and they asked the lawyers to address specifically the question whether the Court should overrule one of its more controversial free-speech decisions.

“The Citizens United case presented the interesting, though fairly technical, question whether and how federal campaign regulations dealing with ‘electioneering communications’ applied to a full-length documentary film about then-Senator Clinton’s career and record,” explains Garnett. “The Justices’ ruling indicates their interest in taking a broader look at laws that deal with election- and campaign-related speech and spending.”

Nearly 20 years ago, in a case called Austin v. Michigan Chamber of Commerce, the Court ruled that, despite the First Amendment’s free-speech clause, governments could prevent corporations from using their money to support (or oppose) political candidates. “It has been clear for some time that several of the Justices believe Austin was wrongly decided, and that its holding is not consistent with our constitutional commitment to the freedom of speech,” says Garnett. “Today’s announcement suggests that the Court is at least considering abandoning that ruling, clarifying its campaign-finance case law, and limiting the ability of government of government to regulate election-related expression.”