The Real Surprise at the Court today

The Court’s most unexpected move was to order the September reargument of the Citizens United v. FEC case. The justices invite lawyers to address the issue of whether the Court ought to overrule its very recent ruling (McConnell v. FEC) that upheld the “electioneering communication” provisions of the McCain-Feingold act, as well as a 1990 ruling pertaining to corporate independent expenditures.

The “electioneering communication” issue is a very important free speech matter, and it looks like the Court (in contrast to its recent Voting Rights Act decision) may be preparing to address it directly. The case at hand has to do with the airing of an anti-Hillary Clinton movie in the time around an election. McCain-Feingold says electoral ads are banned around election time unless they’re funded by the proper sources (that is, money raised via regulated and reported procedures and channels).

The cop-out way to decide this case might be to define “Hillary the Movie” out of the regulated category: It’s not an ad, it’s a “documentary”, so it doesn’t fall under the McCain-Feingold rules. (This is a stretch, but it was also a stretch to avoid the constitutional issue in the VRA case.)  But at least some of the justices must want to consider the uncomfortable move of overruling a very recent (2003) precedent, or they wouldn’t have ordered the reargument.