Bench Memos

NRO’s home for judicial news and analysis.

Was Austin an “Anomaly”


In questioning from Senator Hatch about the Citizens United decision, Kagan said that, in her view, the Supreme Court’s 1990 decision in Austin v. Michigan Chamber of Commerce limiting corporate political speech was not an anomaly in the Supreme Court’s First Amendment jurisprudence.  This is hard to square with her own handling of the case as Solicitor General.  As many commentators noted at the time, Kagan abandoned the Austin rationale for restrcitions on corporate campaign spending in her argument before the Court.  Yet if Austin were not an anomaly in the Court’s jurisprudence, there would have been no reason for this, and it could have been defended on its own terms.


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