Stephen Klein writes for Pillar of Law:
After the unfortunate passing of Justice Antonin Scalia on February 13, the U.S. Supreme Court is left with eight justices who sometimes split along generalized “liberal” and “conservative” lines. In the campaign finance area, this is a fair characterization. McCutcheon v. Federal Election Commission (“FEC”) (2014), Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011) and Citizens United v. FEC (2010)—among the most recent of the Court’s campaign finance decisions—were each decided 5-4 with Justice Scalia joining Chief Justice Roberts and Justices Kennedy, Alito and Thomas in the majority. Each decision held that the First Amendment overruled or curtailed the laws challenged in each case. With leadership in the United States Senate presently resisting confirmation hearings for whomever President Obama may appoint to replace Justice Scalia (with which I’m sympathetic), campaign finance cases may end in 4-4 splits, unable to achieve a majority ruling. This would allow rulings at federal courts of appeal to stand, even if they are contrary to previous rulings. One pending case at the Court, McDonnell v. United States, is not specifically a campaign finance case but may have serious implications on the use of criminal law in campaign finance.
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