<x-flowed>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.  Tha!

t 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 appr!

oaches 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