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