Subject: RE: The Vermont case and the future of campaign finance
From: "Smith, Brad" <BSmith@law.capital.edu>
Date: 9/30/2005, 2:01 PM
To: "Rick Hasen" <rick.hasen@lls.edu>
CC: election-law@majordomo.lls.edu

I don't know where I'd put the odds. Let me see who the nominee is, that
would at least be a start.  Remember, for certain (powerful) elements of
the GOP, the top tactical political priority right now is still to shut
down left-leaning independent groups ("527s").  I would not expect a
devotion to less regulated political speech to be a "litmus test" for
the nominee.  Anyway, even with no changes on the Court, 80/20 might
have been high - I first typed 60/40, then changed it to 70/30, then
80/20, but all without much thought.  But it seems to me that O'Connor
drank deeply from the kool-aid in McConnell, and I am not at all sure
that she regrets it.  Had the McConnell opinion been more carefully
reasoned, I might think otherwise, but I think its lax language and
shallow analysis indicate that O'Connor had no stomach for this anymore.

I am puzzled as to why you and Marty are so doubtful about Souter's
vote.  Am I forgetting or missing some hint or sense of doubt in an
opinion somewhere?  I would be very surprised if Souter did not vote to
uphold the limits.  Perhaps I am unduly pessimistic.  In any case, I
prefer Bonifaz's position because he has less to lose.  He loses, it's a
setback but he can try again - especially if the opinion is narrow.
Bopp loses, it's a disaster for his cause.

But I probably should say none of this, my prediction on the McConnell
outcome and reasoning having been so prescient.  As you suggest to Jon
Bonifaz, it might be wise to take that glory and sit down, before anyone
realizes how lucky I was to get it right.

Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, Ohio

-----Original Message-----
From: Rick Hasen [mailto:rick.hasen@lls.edu] 
Sent: Friday, September 30, 2005 4:40 PM
To: Smith, Brad
Cc: election-law@majordomo.lls.edu
Subject: Re: The Vermont case and the future of campaign finance

Sorry Brad---my mistaken reading.  But you did say that even with 
changes in the Court, you'd rather be in Bonifaz's shoes, which suggests

you see the odds as at least greater than 50-50 for the Court to uphold 
spending limits, no?  If not, we are in agreement.
Rick

Smith, Brad wrote:

I'd suggest you read my post again.  I think it rather clear that I am
not predicting 80-20 that the Court will uphold spending limits.  What I
said was that that would have been my projection without the turnover on
the court.  
The sentence begins, "if there had been no changes on the court..."

Brad Smith


________________________________

From: Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Fri 9/30/2005 2:52 PM
To: Smith, Brad
Cc: election-law@majordomo.lls.edu
Subject: Re: The Vermont case and the future of campaign finance


Maybe it is my head cold that is clouding my judgment, but if Brad
Smith is offering 80:20 odds on the Supreme Court upholding spending
limits in candidate campaigns in the Vermont case I'd be willing to
wager a substantial sum on the other side.
I agree with Marty Lederman's read of the Court from his earlier post
today.  I count at most four votes to uphold spending limits even under
a much more narrowly tailored (and less draconian) law than
Vermont's----and I would be quite unsure as to whether to put Justice
Souter in there as the fourth vote.  

Is Brad suggesting that either Chief Justice Roberts or Justice
O'Connor's replacement would provide a fifth vote in this direction?  I
find this incredibly hard to believe, given the Chief's recent answer to
Judiciary  Committee questions that he joined the Reagan and Bush II
administrations because he generally agreed with their policies.  People
who generally agree with those administration's policies are not even
likely to vote to uphold *contribution* limits, and are fairly likely
(but for respect for existing precedent) to strike down longstanding
spending limits in the corporate and union context.  But to uphold
candidate spending limits?  I cannot see it happening with this change
of the Court (even though, like Brad, I predicted a move in that
direction if the current Court stayed the same, with the big question
being whether Justice O'Connor would come along for the ride).  

Why would the Court have granted cert if a majority liked the spending
limits?  Rather, if you are Gingburg, Breyer, or Stevens, you don't want
this case heard, and you want things to percolate in the states for a
while, showing that spending limits can indeed work.  My guess is that
the votes to grant cert. came from Kennedy, Scalia, Thomas and O'Connor,
with the first three gambling that the new Chief and O'Connor's
replacement are likely to vote with them, even if those two would not go
even further (as Thomas and Scalia and possibly Kennedy would) in
striking down contribution limits as well.

It is indeed an odd day when Brad wants to play Bonifaz, Eugene is
offering NVRI advice, and I'm saying I'd like to be in Jim Bopp's shoes.

Rick

Smith, Brad wrote: 

	For what it is worth - probably very little - my take would
correspond with Heather's.  In a  short article I wrote in the summer of
2003 for the Cato Supreme Court Review, discussing the upcoming
McConnell case,  "Campaign Finance Reform: Looking for Corruption in All
the Wrong Places," 2003 Cato S. Ct. Rev. 187 (2003) I wrote, "Indeed, if
there are tea leaves to be read in [F.E.C. v.] Beaumont, it may be that
the Court already considers Buckley obsolete."  I added that the
McConnell plaintiffs would not be able to show that the restrictions of
BCRA were not "closely drawn" given the Court's decisions in Colorado
Republican II and Beaumont, and the concerns those decisions exhibited
about "evasion" and "conduits" even in the absence of any evidence or
even claim of corruption.  I concluded that the plaintiffs in McConnell
were arguing that under Buckley they should win, and that in some law
school exam sense they were probably right.  But while I predicted that
the Court would not admit to overruling Buckley, the plaintiffs would
nonetheless lose because, "they are trying to call back a ship that has
already sailed."

	 

	Of course, that is largely what happened.  The Court claimed to
follow Buckley, and in some vague sense I suppose it did, but as Lillian
BeVier noted in the ELJ, "this is not your father's Buckley."  I agree
with Heather that new appointments to the Court may shake up the
coalition, but I get a kick out of the debate over whether Roberts will
follow "precedent." I agree with Rick's criticisms of the NYTimes
editorial, but as we have seen, there is precedent, and then there is
precedent (and perhaps even, as one senator suggests, "super duper
precedent."  Frankly, short of overturning contribution limits - and
does anybody see this happening? - whatever decision the Court makes it
will justify as following precedent.  "We have never held that spending
limits are per se unconstitutional....  Buckley and McConnell make clear
that the legislature is not helpless when it comes to policing
corruption blah blah blah."

	 

	I don't much care for parlor games of this sort, but today I'll
play along.  If there had been no changes on the court, I'd place the
odds at about 80-20 that the court would uphold spending limits.  With
new personnel, including an unknown justice who has not even been
identified and may not be seated to hear the case, who can say with
certainty?  But right now I'd rather be in the position of Jon Bonifaz,
playing offense, than of Jim Bopp, playing defense.

	 

	Bradley A. Smith

	Professor of Law

	Capital University Law School

	Columbus, Ohio

	
________________________________


	From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Heather
Gerken
	Sent: Friday, September 30, 2005 9:56 AM
	To: election-law@majordomo.lls.edu
	Subject: The Vermont case and the future of campaign finance

	 

	I wonder whether members of the list share Rick Hasen's view on
the Vermont case ("John Bonifaz is Wildy Over-optimistic (at least in
Public) About His Chances of Getting the Supreme Court to Accept the
Constitutionality of Spending Limits").  Campaign finance is not my
specialty, but whenever I teach these cases, I always leave with the
impression that a significant shift in the Court's approach is
approaching.  The Justices obviously understand how unworkable Buckley
has become, and the number of individual Justices calling for a new
approach is noteworthy.  Indeed, I read McConnell not as an example of
the Court's doctrinal sloppiness, but as a sign that the Court is just
going through the motions, waiting for the shift.  
	
	For these reasons, my guess is that precise doctrinal parsing
isn't going to offer a very useful guide for predicting where the Court
goes from here.  What is really going to matter is whether a new
coalition can be forged among the Justice to outline a new approach.  So
it's not just the votes of Chief Justice Roberts and O'Connor's
replacement that will matter, but how their presence on the Court
changes the current, well-worn dynamic among the Justices.  And the
atmospherics are likely to matter as well -- I think that Rick Pildes'
observation about the Court's distaste for instability and scandal
provides a pretty good predictor for the Justice's intuitions on these
matters.  If I were trying to move Justice Kennedy (the focus of Rick's
challenge to John Bonifaz), I'd do everything I could to remind him
about how badly the system is running rather than offering him the
paeans about inequality and the little guy that one sees so often in
campaign finance discourse.  That is, given Justice Kennedy's strong
views on the First Amendment, I'd try to shift the debate from the
well-worn liberty v. equality debate to a bird's eye view that focuses
on administrative, regulatory concerns.
	
	That's not to say that Rick's predictions are inaccurate -- to
the contrary, I'm making no prediction as to where such a coalition
would lead the Court, and Rick knows a good deal more about the
intricacies of campaign finance law than I do.  And even if I'm right
about impending change, it's not clear that it will happen in this case,
as the two new Justices may not want to/be able to exercise such a
leadership role in their first year on the Court.  I merely want to
suggest that the listserve's discussion on the Vermont case thus far
(centering on what is or is not consistent with Buckley) may be too
narrowly focused.  If I were the NVRI, I'd certainly want to talk about
past precedent.  But I'd also organize my amicus strategy around putting
in front of the Court a number of alternative paradigms for thinking
about campaign finance -- not just the "equality" paradigm or a
balancing approach, with which the Court is all too familiar by now, but
a range of structural approaches or procedural strategies that might
help guide the Court's thinking on these matters.        
	
	Best,
	
	Heather
	
	
	

	Heather Gerken
	Visiting Professor 
	Yale Law School
	Box 208215
	New Haven CT  06520-8215
	(203) 432-8022
	heather.gerken@yale.edu
	Sept. 1, 2005 - June 1, 2006
	
	Professor
	Harvard Law School
	1525 Massachusetts Avenue
	Cambridge MA  02138
	617-496-8262
	gerken@law.harvard.edu 


 


-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 South Albany Street Los Angeles, CA 90015-0019 (213)736-1466 - voice (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org