The Supreme Court has by now voted on Citizens United v. FEC and the justices should be writing their opinions. After a special oral argument last week, most observers were predicting a win for Citizens United in their battle to air “Hillary: The Movie,” (or more realistically, for Citizens United’s future political speech efforts.) The question will be how large the win is – will the Court overrule the a pair of recent precedents, Austin v. Michigan Chamber of Commerce and McConnell v. FEC, which themselves twisted and distorted the Court’s prior decision in Buckley v. Valeo, while claiming to leave Buckley intact (a sort of “faux judicial restraint)? Or will it decide the case on more narrow grounds?
In this article from the October 2008 issue of Engage, journal of the Federalist Society’s Practice Groups, CCP Academic Advisor and George Mason University Law Professor Allison Hayward argues that a “principled court” can and should “repair the mistakes of the past.”
She argues, in part:
Unfortunately, the present blend of court-crafted doctrine and Congress-crafted statute is complicated and irrational. Thus, attempting to scrutinize future cases within existing precedent will not help decrease the burden this conglomeration imposes on political activity. That complexity alone may raise a deeper legal question. Can complexity itself pose an unconstitutional burden on speech, association, or other protected activity?