[EL] Roberts Court and campaign finance retrospective

[Schultz, David A.]

Hi all:

Recently Rick Hasen  posted a draft of a research paper where he looked
back at ten years of the Roberts Court and its election law cases.  His
piece then looked at how well his predictions held up.  Given his posting I
decided to go back to an older article of mine too, Buckley V. Valeo,
Randall V. Sorrell, and the Future of Campaign Finance on the Roberts Court
 12 NEXUS 153
NEXUS (2007).  The piece came out after the Randall v. Sorrell opinion.
Here is what I argued as my thesis.



But is Buckley's fate really sealed? Can we count on a future conservative
Supreme Court to eradicate it? If the Randall v. Sorrell opinion is any
indication, *154 the answer is, perhaps no. However, even if a future
majority were in favor of its execution, it is not so clear what the damage
would be if it were to die. It is also unclear what would replace Buckley,
or even whether the Court would need to overturn the decision to kill it,
thus posing the argument that regardless of what may happen, Buckley will
live to see many more days.

This article adopts a contrarian thesis to the received wisdom on the
future demise of Buckley v. Valeo--the precedent will live on because there
is no consensus on how or whether to eradicate it, and there is no
satisfactory replacement for it. Instead, Buckley represents what, for now,
seems to be an unhappy judicial compromise that will live on, despite
grumbling from both liberals and conservatives.6 To make this claim, this
article will first seek to clarify what the Buckley Court decided - in
other words, define the precedent at issue in the case under attack.
Second, this article will discuss the current Court's disagreements with
Buckley by examining the Justices' current criticisms of the decision
throughout various judicial opinions, including Randall v. Sorrell. The
article will then explain why there is currently no consensus regarding how
to exterminate Buckley or what its replacement would be. Finally, this
article will explore why even a possible future conservative Roberts Court
is unlikely to overturn Buckley, especially in light of how the Randall v.
Sorrell opinion seems to reinvigorate the 1976 precedent.

I have not chosen yet to write a retrospective on the Roberts Court and
campaign finance but I think my basic thesis stands that the Roberts Court
is unlikely to formally overturn Buckley, even though it is hollowing it
out.

Curious to other’s thoughts?

-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013, 2014
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