[EL] a few reactions to the Montana summary reversal

Mon Jun 25 11:49:54 PDT 2012

That Justice Kagan joined Justice Breyer's opinion today is not surprising even though she disagreed with the position in one of her earlier law review articles.  She dissented in the Arizona Free Enterprise Club decision and embraced a theory she had rather strongly rejected in a law review article while she was at the University of Chicago.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Monday, June 25, 2012 10:36 AM
To: law-election at uci.edu; law-legislation at uci.edu
Subject: [EL] a few reactions to the Montana summary reversal

A Few Reactions About the Montana Decision<http://electionlawblog.org/?p=36150>
Posted on June 25, 2012 7:30 am<http://electionlawblog.org/?p=36150> by Rick Hasen<http://electionlawblog.org/?author=3>

1. Justice Breyer's very short dissent<http://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf> is very restrained.  It does not contain the stronger rhetoric of Justice Ginsburg's earlier statement in the case in connection with the stay.  So no speaking "truth to power"<http://www.slate.com/articles/news_and_politics/politics/2012/02/justice_ruth_bader_ginsburg_is_ready_to_speak_out_on_the_danger_of_super_pacs_.html> as I had suggested the dissenting Justices might want to do in this case.  The tone is more of lamenting.  Justice Breyer says that the vote for the per curiam reversal signals that the Court is not ready to either reconsider Citizens United or at least examine its application in light of this case.  So what's the point of a full hearing he says?

2. Justice Breyer's "what's the point" statement points to another fundamental point about this case.  I view this as a relative victory for campaign finance reformers.  How is that possible, when the Court has reaffirmed the correctness of Citizens United?  Because taking the case would have made things so much worse.  As I have written, I was simply baffled by the full court press to get the Court to take the case.  As Rick Pildes explains in his post today, <http://electionlawblog.org/?p=36136> there's no reason to believe that the CU majority Justices care about the public outcry against the earlier decision. Taking the case would have been an opportunity for the majority of Supreme Court justices to make things worse, such as by suggesting that limits on direct contributions to candidates are unconstitutional.  The best way to win before the Roberts Court if you are a campaign reformer (aside from on disclosure issues) is not to play.

3. Justice Kagan's position is the most interesting. Before she was confirmed, there was a major question about whether she would have sided with the majority or dissent in CU, because she had written critically of the Austin case (which CU overturned) while a law professor.  I wrote an extensive piece in Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2010/05/the_big_ban_theory.html> on her views during the nomination process.  And although she wrote a strong dissent in the Arizona Free Enterprise case last year involving Arizona's campaign finance law, that was all about corruption, and it was not clear how far she would go on the more direct question of ban on direct spending from corporate treasuries.  But today, Justice Breyer, joined in full by Justice Kagan, endorses Justice Stevens' dissent in CU, which argued for both anticorruption and egalitarian reasons for limiting corporate spending. (Here's my explanation <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1737938> of Justice Stevens' muddle on these points.)  But whatever Stevens meant, Justice Kagan appears to be signing on here.  That means a strong and solid four justices ready to overturn Citizens United.

4. This brings me to my final point.  The 2012 election will matter too if the next president gets to appoint one or more Justices to the Court to replace either Justice Scalia or Kennedy.  We don't know if that will happen, but it is more likely to happen if it is President Romney than Obama.  Decisions like these (and a health care reversal, if that comes), makes it more likely for Obama to make an issue of the Supreme Court, as I suggested in Scalia's Retirement Party.<http://www.slate.com/articles/news_and_politics/jurisprudence/2010/04/scalias_retirement_party.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off
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Rick Hasen
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UC Irvine School of Law
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