The Supreme Court's unusual order Monday delaying a decision in Citizens United v. Federal Election Commission and setting it for reargument Sept. 9 may introduce more pressure on the Senate to confirm Supreme Court nominee Sonia Sotomayor and have her on the bench by then.
Here's how it works: the Court, for whatever reasons -- and theories abound -- ordered new arguments and wants the parties to file additional briefs on whether the Court should overturn its 1990 decision Austin v. Michigan Chamber of Commerce and part of the 2003 ruling in McConnell v. FEC. Both decisions upheld bans on independent expenditures in connection with campaigns from corporations and unions. The only way corporations and unions can participate in campaigns now is through regulated political action committees.
The Court's action sounded alarms among campaign reform organizations, who see those key precedents in jeopardy at the hands of the Roberts Court, which has shown general hostility toward several provisions of the 2001 McCain-Feingold law upheld in McConnell. Fred Wertheimer of Democracy 21 said that if the precedents the Court wants to review in September are overturned, companies would be "free to spend hundreds of millions of dollars of their corporate wealth" on campaigns, and such an action by the Supreme Court would be "the height of judicial activism and an abandonment of the principles of judicial restraint."
Justice David Souter, who retired as of midnight Monday night, was a reliable vote in favor of campaign finance regulations, so would have been almost certain to uphold Austin. If Sotomayor is seated in time to hear the arguments, her record suggests she would be a likely supporter too. Without her, the outcome on an eight-member Court would be uncertain. Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas have already criticized Austin.
In this post on Election Law Blog, Rick Hasen even wonders aloud whether Souter knew about the Court's plan to reargue the case when he decided on May 1 to retire as of the start of the summer recess, rather than when his successor is seated. If he had done the latter, he might have sat for the argument but been off the Court by the time a decision was announced -- an awkwardness he might have wanted to avoid.
This article first appeared on The BLT: The Blog of Legal Times.