Judicial Activism On The Way?

Slate's Rich Hasen argues that the campaign finance decision not handed down yesterday by the Supremes is by far the most important, especially since the court is taking the extremely rare step of rehearing the case in September and greatly expanding the scope of the argument well beyond the original case.

In a Supreme Court term that has had its share of surprises, the court saved one of the biggest for last. Rather than publish an opinion at the end of the term as expected in an obscure campaign finance case, Citizens United v. FEC, the court issued a rare order for reargument of the case in September (before the usual start of the term). At that point, the court will consider whether to overrule its two previous decisions that in 1990 and 2003 upheld limits on corporate spending in federal elections.

Given the dynamics of the court, there is a great chance the justices will use the opportunity to overrule limits on how much money corporations can spend supporting candidates—whether or not Judge Sonia Sotomayor is confirmed in time to hear the case in September. In the Voting Rights Act case the court considered last week, the court ducked the constitutional question in favor of narrow statutory interpretation. In contrast, in Citizens United, the court is likely to address the constitutional questions head-on, and the outcome likely will not be good for supporters of reasonable campaign-finance regulation.

The case itself, Citizens United vs. FEC, was supposed to be about whether or not a documentary slamming Hillary Clinton produced during the 2008 campaign was a documentary or if it constituted a film-length campaign ad, subject to provisions of the McCain-Feingold campaign finance laws. By instead rehearing the case and expanding the scope of the decision, it's clear to Hagan that the Supreme Court is planning to overturn Mc-Cain-Feingold as unconstitutional and that they plan to do it before the 2010 campaign season gets underway.

My personal feelings are that Obama's financial juggernaut in 2008 was the straw that broke the camel's back, rendering the need for McCain-Feingold a moot point. Why have the laws when you can skip public financing and bury your opponent with private cash? If anything, Obama's fundraising prowess showed the need to have these laws eliminated and allowing all sides virtually unlimited campaign financing. Nobody expects either party to use public financing in the presidential race in 2012...ergo why put the handcuffs on it?

I don't agree with it, but I have to admit that Rich Hagan sees this coming a mile away. It's judicial activism at its finest, the Supreme Court almost certainly plans to legislate from the bench here. Conservatives will no doubt scream to high heaven about such use of the unaccountable Judiciary in making our laws, yes?