Briefing set on Citizens United rehearing
The Supreme Court on Monday afternoon ordered a schedule for filing new constitutional arguments when the case of Citizens United v. F.E.C. (08-205) is heard, before the opening of the new Term. The rehearing itself will be at 10 a.m. on Sept. 9, nearly a month before the formal opening of the Term on Oct. 5.
Both sides are to file their opening briefs simultaneously by July 24, with amici briefs due by July 31. Reply briefs are due by Aug. 19.
These are to be supplemental briefs — that is, confined to the new question the Court has raised, without repeating other arguments previously made in the case. The new issue is whether the Court should overrule either or both of two prior rulings on campaign finance law — Austin v. Michigan Chamber of Commerce in 1990 and part of McConnell v. F.E.C. in 2003.
In the Austin decision, the Court upheld the power of government to bar corporations from using funds from their own treasuries to support or oppose candidates for elected state offices. In the part of McConnell that the Court will reconsider, the Justices upheld a provision of the 2002 campaign finance law that bars corporations and labor unions from using their treasury funds to pay for radio or TV ads, during election season, that refer to a candidate for Congress or the Presidency, and appear to urge a vote for or against such a candidate. The Citizens United case involves a non-profit group’s campaign-season film sharply attacking the presidential candidacy of Hillary Rodham Clinton.
By scheduling the new oral argument before the next Term opens formally, the Court will repeat its approach to the McConnell decision: the argument in that case occurred on Sept. 8, 2003, in advance of the opening.
If the U.S. Senate moves with some dispatch, and approves the nomination of Justice-candidate Sonia Sotomayor, she could be on the bench for the Sept. 9 argument. Even if she is not, however, she could, if confirmed, participate in reviewing the case by reading the briefs and listening to the audiotape of the oral argument. She would not have to be physically present for the Sept. 9 session.