When the Supreme Court on June 29 ordered re-argument in the campaign finance case Citizens United v. Federal Election Commission, the speculation was nearly unanimous on why it took that unusual action: that the Court was ready, even eager, to overturn major precedents that have allowed the government to bar independent campaign expenditures by corporations and unions in federal elections. More than five months later, that outcome still seems probable -- but the likelihood of a clear-cut, sweeping decision seems remote. Things have have apparently gotten complicated in the private counsels of the Court.
This morning, the Court gaveled its final session of 2009 to a close without a decision in Citizens United. Speculation has ialready ntensified over what is causing the delay, and what it could mean. The general consensus is that a proliferation of concurrences and dissents has slowed issuance of the final ruling, pointing toward the kind of mix-and-match majority decision that will be hard to decipher -- and harder to put into effect. With the 2010 congressional campaign season drawing near, that could mean confusion over the role that corporations can play in the next election.
"Citizens United portends to be a highly contentious case, with a likely 5-4 decision involving lengthy opinions on all sides," said Wiley Rein's campaign law expert Jan Baran this morning. Baran said the high court's delay reminds him of the long gestation period for McConnell v. FEC, the 2003 decision that first interpreted the Bipartisan Campaign Reform Act. The three-judge panel that first heard the case took months to rule and issued four different opinions totalling nearly 2,000 pages. "The Supreme Court did little better," said Baran, adding that its 5-4 decision upholding most of the law was the lengthiest opinion in the history of the Court since Dred Scott in 1857.
John Elwood, Vinson & Elkins' Supreme Court watcher, today also invoked the McConnell decision, which tackled multiple appeals challenging many sections of the then-new McCain-Feingold law. It was argued before the Supreme Court on Sept. 8, 2003, and the Court issued its ruling on Dec. 10 -- less time than it has taken for the Court to decide Citizens United which, though weighty, is much more limited in scope.
"I imagine that the justices are having a lot of back and forth on circulating drafts," said Elwood, who has written about the delay on the Volokh Conspiracy blog. "The principal opinion responds to a dissent, and the dissent then readjusts to respond to the principal opinion. Some of the cases that take the longest to be decided wind up having no majority opinion. It sometimes takes a while for it to become apparent that the justice assigned to write the opinion isn't getting a majority, then the 'lost vote' has to write his or her own opinion, and everyone else has to respond to that opinion."
Which justice might be the lost vote? Elwood won't say, but the betting crowd has a likely answer: Justice Anthony Kennedy, who has been known to agonize for extended periods from his position as swing vote. At fantasySCOTUS.net, which bills itself as the premier Supreme Court fantasy league, 90 per cent of the members put Kennedy in the majority in Citizens United, which founder Josh Blackman interprets to mean that Kennedy is either "a persuasive bellwether for this case or holds out to decide split votes."