COVERITLIVE.COM

2:30

Fred Barbash-Moderator - Rick Hasen, one of the nation's leading experts on election law, will be with us at 3 EDT for half an hour to take questions on the oral arguments today at the Supreme Court in Citizens United v. FEC. You may submit questions now. Please use a name rather than a handle or "guest." Thanks

2:33

Fred Barbash-Moderator - See Rick's initial impressions here.

An excerpt: "there was absolutely nothing in the Citizens United oral argument questions of the two likely "swing justices" in this case to give any comfort to those who believe that Congress should have the power to limit corporate spending in candidate elections.

It was a hot bench, with every Justice besides Justice Thomas asking numerous questions. (Justice Thomas is the Justice taking most deregulatory position in campaign finance jurisprudence, so his vote is not in doubt.)

From oral argument, the Court lines up 5-4. Justices Breyer, Ginsburg, Sotomayor and Stevens were looking for a way to decide this case without reaching the constitutional question. There are at least three possibilities here: (1) expand the MCFL exemption; (2) construe BCRA so that the Snowe-Jeffords amendment applies; or (3) as Justice Sotomayor suggested, construe the statute on one of the statutory bases to avoid the constitutional question. (One possibility---the one I think most likely for at least some Justices--is to say that McCain-Feingold does not apply to video-on-demand.)"

2:35

Fred Barbash-Moderator - Here is the NYT story on the arguments.

Here is the lede from Bob Barnes' story in the Washington Post:

"Conservative members of the Supreme Court indicated Wednesday that they were extremely uncomfortable with restrictions that government has placed on the role of corporate spending on candidate elections and might rule broadly to strike what has been a long-standing fixture of campaign finance laws."

2:59

Fred Barbash-Moderator - Welcome readers and welcome Rick Hasen. For those of you unfamiliar with Rick's Election Law Blog, it is probably the most authoritative and consistently correct resource available on all matters of election law. I highly recommend it. It is not for nothing that Rick is in such demand by media outlets today...so we'll get started.

Rick: An hour and a half of oral arguments...First...did you hear anything from any of the justices that surprised you? Second...do you care to go out on a limb here and speculate as to the outcome based on what you heard?

3:01

[Comment From Rick Hasen]
I was listening most intently to what Chief Justice Roberts and Justice Alito had to say, because they are the "swing justices" here. I was most surprised that Justice Alito did not seem bothered by the idea of overruling precedent---that's really the key question for him and the Chief Justice. If they were writing on a clear slate, it is clear they would vote with Kennedy, Scalia, and Thomas to overrule those earlier cases...

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