Greetings Innovators,

I2M 2010 PAC faculty member, Brett Kappel of Arent Fox (kappel.brett@arentfox.com | www.arentfox.com) wanted you to be aware of the latest insights on the Citizens United case. According to Brett: “Linda Greenhouse was the Supreme Court reporter for the New York Times for thirty years until retiring last year. No journalist knows the Court better.”

The Supreme Court justices left this week for a month long recess without accomplishing the one thing that nearly everyone assumed they would have done by now: decide the major challenge to existing federal restrictions on political spending by corporations. The court heard the case, Citizens United v. Federal Election Commission, in a special sitting on Sept. 9, nearly a month before the term began.

Citizens United is technically a case from the last term, when the court heard it the first time. Instead of the expected decision, the justices issued a surprise reargument order on June 29, telling the lawyers to address whether the court should continue to adhere to its modern constitutional framework for regulating corporate money in politics.

This was an aggressive move by the court’s new deregulatory majority: Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia, Clarence Thomas and Anthony M. Kennedy. In their view, a robust First Amendment right to political speech, for corporations as well as individuals, trumps all or nearly all rationales for regulating money in politics ­ including those the Supreme Court accepted as recently as 2003, when it upheld the McCain-Feingold campaign finance law. That decision, McConnell v. Federal Election Commission, is one of the rulings the court is now reconsidering, along with another from 1990.

I can only assume that the other justices, in whose view the First Amendment need not be interpreted to strangle Congress’s ability to regulate the flow of money into politics, see this exercise in self-help for what it is: a hijacking that has turned a minor case into an agenda-driven vehicle for undoing the status quo. A tenet of judicial minimalism is that at the very least, the court waits to be asked, rather than reaching out to decide the profound questions of the day.

I realize that uncertainty is an undesirable trait in an opinion columnist, but I have to confess to long-standing agnosticism on the campaign finance issue. I take the First Amendment arguments seriously, and I think that the provision of McCain-Feingold at issue in the original Citizens United case ­ banning corporate-paid “electioneering communications” from the airwaves during the weeks before an election ­ goes too far toward suppressing legitimate expression. (Citizens United presented the narrow, fact-specific question of whether a film titled “Hillary: The Movie,” a feature-length political attack on Hillary Rodham Clinton intended for video-on-demand cable television, was the sort of “electioneering communication” to which the statute applied.)

But I also believe that the First Amendment doesn’t require resigning ourselves to seeing democracy auctioned off to the highest bidder. It is, in other words, an exquisitely tough issue, made no simpler by decades of inconsistent Supreme Court decisions that have produced legal doctrine so muddled as to be “beyond incoherence,” in the words of Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles.

In placing two major recent precedents in question and setting off a mid-summer scramble to file supplemental briefs and prepare for an unnecessarily expedited argument, the court cheated the public of the full airing that the complex questions merit. Just as important, the court cheated itself with a power play that prized haste over the calm deliberation that would seem to offer the only path to finding common ground on a polarized court.

Now it appears that the chief justice and his allies may have overreached. With 37 cases argued so far this term, the court left town having decided a scant four. There is some speculation that a prolonged internal struggle over how far to go in Citizens United has sucked the air out of the term. The court’s silence, of course, proves only that it had nothing ready for prime time. Perhaps a tactical retreat to minimalism is in the offing, as happened last term, when the court’s conservatives teed up a constitutional evisceration of the Voting Rights Act, only to back down in the end.

I may not be sure what I think about how to regulate money in politics, but I’m confident of this prediction: that no matter how the court rules, it will not fix the old problems and ­ if the past is any guide ­ just might create new ones.