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Bench Memos

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Overruling Austin



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If the past is prologue, you can expect a lot of commentary from the Left alleging—falsely (as I discuss here)—that Chief Justice Roberts and Justice Alito have somehow betrayed their confirmation testimony in voting to overrule the Court’s holdings on corporate speech in Austin v. Michigan State Chamber of Commerce and McConnell v. FEC.  It’s worth emphasizing—as I discuss here and as Justice Kennedy’s excellent majority opinion and the Chief Justice’s strong concurrence (joined by Alito) elaborate—that Solicitor General Elena Kagan walked away from the Court’s actual rationale in Austin (which rationale had already been undermined by recent precedent) and that she instead advanced a defense of Austin that, as a strong proponent of the corporate campaign-finance provisions put it, would have required the Court “to reject, at least in part, one of the central tenets of [the landmark 1976 decision in] Buckley [v. Valeo].” 


Tags: Whelan


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