I agree that paeans to the little guy aren't likely to
carry a lot of truck with the more conservative
members of the Court, and that a new paradigm is
needed.
How's this for a new approach? Why not, for First
Amendment purposes, treat the campaign that's being
regulated as a "virtual public forum" -- as the Court
has done in other contexts, e.g., Rosenberger v.
Rector? Viewed under such a paradigm, the
justification for spending limits is that, in an era
where mass communication is crucial to electoral
succees, they prevent the candidate or candidates with
the best connections to wealthy donors from saturating
the media marketplace with their advertising,
effectively denying other potential speakers access to
the public debate (i.e., their turn at the virtual
podium). Indeed, as the Vermont legislative record
shows, in the absence of such regulation, campaigns
devolve into Hobbesian warfare. Why shouldn't
legislation that's narrowly tailored to end that sort
of campaign finance "arms race" be constitutionally
legitimate? And, when deciding what is or is not
narrowly tailored, shouldn't a legislature get some
deference from the Court, a la McConnell, as the
institution best situated to decide these kinds of
questions?
Thom Cmar
thom@post.harvard.edu
--- Heather Gerken <gerken@law.harvard.edu> wrote:
---------------------------------
I wonder whether members of the list share Rick
Hasen's view on theVermont case ("John Bonifaz is
Wildy Over-optimistic (at least inPublic) About His
Chances of Getting the Supreme Court to Accept
theConstitutionality of Spending Limits"). Campaign
finance isnot my specialty, but whenever I teach these
cases, I always leave withthe impression that a
significant shift in the Court's approach
isapproaching. The Justices obviously understand how
unworkableBuckley has become, and the number of
individual Justices callingfor a new approach is
noteworthy. Indeed, I read McConnellnot as an example
of the Court's doctrinal sloppiness, but as a signthat
the Court is just going through the motions, waiting
for theshift.
For these reasons, my guess is that precise doctrinal
parsing isn't goingto offer a very useful guide for
predicting where the Court goes fromhere. What is
really going to matter is whether a new coalition
canbe forged among the Justice to outline a new
approach. So it's notjust the votes of Chief Justice
Roberts and O'Connor's replacement thatwill matter,
but how their presence on the Court changes the
current,well-worn dynamic among the Justices. And the
atmospherics arelikely to matter as well -- I think
that Rick Pildes' observation aboutthe Court's
distaste for instability and scandal provides a pretty
goodpredictor for the Justice's intuitions on these
matters. If I weretrying to move Justice Kennedy (the
focus of Rick's challenge to JohnBonifaz), I'd do
everything I could to remind him about how badly
thesystem is running rather than offering him the
paeans about inequalityand the little guy that one
sees so often in campaign financediscourse. That is,
given Justice Kennedy's strong views on theFirst
Amendment, I'd try to shift the debate from the
well-worn libertyv. 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 thecontrary, I'm making no prediction
as to where such a coalition wouldlead the Court, and
Rick knows a good deal more about the intricacies
ofcampaign finance law than I do. And even if I'm
right aboutimpending change, it's not clear that it
will happen in this case, as thetwo new Justices may
not want to/be able to exercise such a leadershiprole
in their first year on the Court. I merely want to
suggestthat the listserve's discussion on the Vermont
case thus far (centeringon what is or is not
consistent with Buckley) may be too narrowlyfocused.
If I were the NVRI, I'd certainly want to talk about
pastprecedent. But I'd also organize my amicus
strategy around puttingin front of the Court a number
of alternative paradigms for thinkingabout campaign
finance -- not just the "equality" paradigm or
abalancing approach, with which the Court is all too
familiar by now, buta range of structural approaches
or procedural strategies that might helpguide the
Court's thinking on thesematters.
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
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