The Umpire Has the Ball

The narrow issue originally argued before the U.S. Supreme Court last March in Citizens United v. Federal Election Commission concerned whether Section 203 of the Bipartisan Campaign Reform Act of 2002, which bans “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before the general election, applied to the 90-minute documentary “Hillary: The Movie.” The film, sharply critical of Hillary Clinton, was produced by Citizens United, a conservative, nonprofit advocacy corporation, using primarily individual contributions as well as an insignificant amount of corporate contributions.

This summer, the Court raised the stakes considerably with an extraordinary sua sponte order for re-argument with supplemental briefing on a much broader question: whether the Court should overrule the 1990 decision in Austin v. Michigan Chamber of Commerce . There the Court rejected a First Amendment challenge to the constitutionality of a Michigan statute, modeled on a provision of the 1947 Taft-Hartley Act prohibiting direct, independent campaign expenditures by corporations and unions.