[EL] Justice Breyer's Most Significant Election Law Opinion

[Rick Hasen]

Justice Breyer’s Most Significant Election Law Opinion<https://electionlawblog.org/?p=127176>
January 26, 2022, 10:40 am<https://electionlawblog.org/?p=127176> campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29> RICK HASEN<https://electionlawblog.org/?author=3>


With Justice Stephen Breyer’s upcoming retirement<https://www.nytimes.com/live/2022/01/26/us/stephen-breyer-retirement/stephen-breyer-retire-supreme-court> from the Supreme Court, it seems appropriate to offer some words about his legacy in the area of election law. Here is an initial post, and I suspect other ELB contributors will weigh in. I want to focus today on what I consider to be Justice Breyer’s most significant option.

Justice Breyer’s most significant election law opinion is his concurring opinion<https://www.law.cornell.edu/supct/html/98-963.ZC1.html> in the 2000 case, Nixon v. Shrink Missouri Government PAC. The case concerned the question whether Missouri’s campaign finance limits for some state offices were so low as to violate the First Amendment’s rights of free speech and association. The Court, in an opinion by Justice Souter, upheld the limits (under a test that was effectively overruled a few years later in a plurality opinion by Justice Breyer in Randall v. Sorrell).

What made Justice Breyer’s opinion in Shrink Missouri so significant was his discussion of how to conceive of First Amendment challenges when it comes to laws limiting the role of money in politics. On the one hand, Justice Breyer saw the problem of great disparities in economic power translating into great political power to be threatening to American democracy and interfering with free and fair elections. On the other hand, Justice Breyer saw that overregulation in this area could stifle competition and robust political debate. He wrote that “this is a case where constitutionally protected interests lie on both sides of the legal equation.”

Much of what he wrote about the problems of money in politics in Shrink Missouri did not pretend that the problem was all about “corruption.” The corruption frame is necessary because in the 1976 case of Buckley v. Valeo, the Court held that preventing corruption could serve as an important enough government interest to justify some limits on money in politics, but that an interest in political equality could not. (I argue against this framing in my 2016 book, Plutocrats United<https://yalebooks.yale.edu/book/9780300212457/plutocrats-united>.) With the kind of forthrightness rare from other Justices, Justice Breyer wrote:

I recognize that Buckley used language that could be interpreted to the contrary. It said, for example, that it rejected “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others.” 424 U.S., at 48—49. But those words cannot be taken literally.

Justice Breyer expanded on his ideas about the delicate balance between rights of liberty and rights of equality in his 2006 book, Active Liberty<https://www.amazon.com/Active-Liberty-Interpreting-Democratic-Constitution/dp/0307274942>. His thinking here greatly influenced by own. This kind of subtle thinking was Justice Breyer at his best.




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Rick Hasen<http://www.law.uci.edu/faculty/full-time/hasen/>
Chancellor's Professor of Law and Political Science
Co-Director, Fair Elections and Free Speech Center<https://www.law.uci.edu/centers/fefs/>
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
Election Law Blog<http://electionlawblog.org/>
Coming March 2022: Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It<https://yalebooks.yale.edu/book/9780300259377/cheap-speech>


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