Sen. Roberts' Non-Answer on McConnell (and Bush v. Gore)

I was in my car (again, such is life in Los Angeles), and I just heard an exchange between Senator Brownback and Judge Roberts. (I don't have a transcript to link to yet.) The senator's question was the familiar one raised by opponents of campaign finance regulation: how can the Supreme Court strike down on First Amendment grounds laws such as those regulating virtual child pornography on the internet, but uphold restrictions on political speech such as that part of McCain-Feingold limiting corporate and union speech just before elections? Judge Roberts gave no indications as to his own views on the propriety of either case, but sought to explain the Court's decision upholding McCain-Feingold law as based upon the very large record of evidence developed by Congress in passing the law and presented before the three-judge court. The exchange left me with no further indication regarding how Judge Roberts would vote on campaign finance regulation questions, other than my intuition (based on his general conservative philosophy and not on the exchange with the Senator) that he is likely to be less willing to go along with regulation than Justice O'Connor, who turned out to be the swing vote on the constitutionality of McCain-Feingold.

For a similar non-answer on Bush v. Gore, see the exchange with Senator Kohl that I have noted here and this earlier post.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 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
http://electionlawblog.org