In my last post
on factual findings, I noted that where two of the judges agreed on factual
findings, or made substantially similar factual findings, those should be
the findings which the Supreme Court should reveiw for clear error. In two
areas, this point will work in favor of the defenders of the law. (1) Access
- both Judge Kollar-Kotelly and Judge Leon make similar findings about the
role that soft money plays in securing access and a chance to make a case
to public officials. (2) The relevance and persuasiveness of the Brennan Center's
Buying Time studies on the question of separating genuine from sham issue
advocacy--Judge Kollar-Kotelly, and to a lesser but still significant extent,
Judge Leon, reject most of the criticisms of most aspects of the Buying Time
studies and believe that the studies are probative on questions related to
regulating issue advocacy.
Of course, Judge Henderson makes lots of contrary findings on both of these
points, and explicitly invites the Supreme Court to find that the findings
of Judges Kollar-Kotelly and Leon in these areas are clearly erroneous. But
I think this may put the momentum on factual findings into the hands of the
law's defenders.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html