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Opinion L.A.

Opinion: Decide already!

By Michael McGough
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Aaargh. Again, the big news has been delayed. I refer not to the terms of Conan O’Brien’s departure from NBC but a story around which non-entertainment reporters have been keeping a nervous vigil. Yes, it’s Citizens United v. Federal Election Commission, a case before the Supreme Court involving an anti-Hillary-Clinton movie that election regulators considered an illegal ‘sham issue ad.’

In September the high court returned to town early to hear a second round of arguments in the case, signaling that it might revisit two precedents -- one from 2003 upholding as a general proposition the McCain-Feingold law’s ban on ‘electioneering communications.’ Those are issue ads (‘Tell Senator So-and-So to vote no on the bailout!’) that mention a candidate, are paid for by unions or corporations and are broadcast close to an election.

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The other precedent from 1990, allows Congress and the states to ban the expenditure of corporate funds to support or oppose a candidate. (That ban is narrower than the prohibition of ‘electioneering communication.’).

Speculation abhors a vacuum, so here’s mine about why it’s taken the court so long to reach a decision: The justices are negotiating to avoid fracturing the decision too much. That may be hard.

There will be a six- or seven-vote majority for the proposition that the anti-Hillary movie wasn’t an ‘electioneering communication.’ The most conservative justices -- Antonin Scalia and Clarence Thomas -- will want to use this case to dismantle the whole campaign-regulation apparatus.They may be joined by Justice Anthony Kennedy. Chief Justice John Roberts is trying to cobble together a majority for a moderate outcome: no ban on issue ads, but no reversal of the ruling that corporations and unions can be treated differently from other political actors.

You heard it here first -- unless I’m wrong.

-- Michael McGough

[Update: It looks as if the court will hand down the decision in a special session Thursday.]

Opinion L.A.
Michael McGough

Michael McGough is the Los Angeles Times’ former senior editorial writer, based in Washington, D.C. He wrote editorials for The Times from 2006 to 2021. Before that, McGough worked for 30 years for the Pittsburgh Post-Gazette as a reporter, editorial writer, editorial page editor and Washington correspondent. He wrote about law, national security, politics, foreign policy and religion. McGough is a graduate of Allegheny College and also attended the University of Kent at Canterbury in England and Yale Law School, where he received a master of studies in law degree.

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