Rick,
I agree with you that the NYT editorial is inaccurate,
but I disagree with your reading of _Buckley_.
Whether spending limits can ever be consistent with
_Buckley_ is precisely what's at issue in the Vermont
case. Historically, _Buckley_ has been read to mean
"campaign expenditure limits always violate the First
Amendment." In the Vermont case, however, the Second
Circuit accepted the argument that _Buckley_'s real
holding was that "campaign expenditure limits receive
strict scrutiny under the First Amendment," while
leaving open the question of whether a future
legislature, articulating a rationale not considered
in _Buckley_, could develop a legislative record
sufficient to satisfy the _Buckley_ strict scrutiny.
In other words, the Vermont case purports to be
consistent with _Buckley_, despite reaching a
different result (albeit one that's inconsistent with
how _Buckley_ has generally been understood).
(Disclosure: I interned with NVRI while in law school
and did a small amount of research on this case.)
Thom Cmar
thom@post.harvard.edu
--- Rick Hasen <Rick.Hasen@lls.edu> wrote:
The New York Times, Chief Justice Roberts,and the
Vermont Campaign Finance Limits Case
The position of the New York Times editorial board on
thetwo campaign finance cases the Supreme Court will
hear is unsurprising;the board has been a big
supporter of the constitutionality of campaignfinance
regulation. But I was struck by this passage in
today'seditorial:
[The Vermont case] may be one of the first indications
of what kind ofchief justice John Roberts will be. At
his confirmation hearings, heexpressed his commitment
to "judicial modesty" and his respect forestablished
precedent. If he is true to those principles,
deference toVermont's Legislature and respect for
Buckley should lead him to resistany entreaties by
Justices Scalia and Thomas to dismantle the
campaignfinance law.
The point about deference to the legislature is fine
(though I have myown views on when such deference is
appropriate that I've written aboutin detail
elsewhere).But to say that respect for Buckley v.
Valeo should lead thenew Chief to uphold spending
limits applied to candidates isludicrious. If the
judge wishes to respect precedent, he should vote
tostrike down the spending limits. Buckley held that
candidatespending limits are unconstitutional, and it
would take a change inthe law to uphold the Vermont
limits. We can debate whether such achange is
warranted; but it is incorrect to view Buckley theway
the Times editorial does.
The real argument for respecting established
precedent, and the realtest of the new Chief Justice,
as I have written,will come in the Wisconsin case.
Suppose (as I think is a reasonableassumption) the new
Chief believes limits on spending by corporationsand
unions in elections violate the First Amendment. Does
he vote thento overrule the 1990 Austin case and the
2003 McConnell(McCain-Feingold) case to reach this
result?
-- Rick Hasen William H. Hannon Distinguished
Professor of LawLoyola Law School 919 Albany Street
Los Angeles, CA 90015-1211 (213)736-1466 - voice
(213)380-3769 - fax rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
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