“State’s Congressional Districts Rest on Jurisdictional Dispute”

Marcia Coyle:

In the Three-Judge Court Act, Congress required district court panels of three jurists to decide litigation involving redistricting, campaign finance and other key areas.

Three Marylanders now are asking the U.S. Supreme Court the fundamental question of when a case must actually be heard by those special courts. The justices will take their first look at the petition in Shapiro v. Mack during their May 21 conference.

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In Defense of Justice Scalia

I’m going to disagree with Jeff Toobin on this one. The comment on the protester seems pretty innocuous to me.  I take it that Scalia was joking that it was “refreshing” to have a right wing person disrupting the Court rather than the left-wing campaign finance protestors who have repeatedly been in Court recently.

I have no doubt where Justice Scalia will fall in the same sex marriage cases, and it is a place with which I will strongly disagree.  But I would not see a broader cultural or political statement in Justice Scalia’s refreshing comment. He’s the Supreme Court’s class clown who just can’t help himself with the wise crack at oral argument.

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Floyd Abrams Speech on First Amendment Makes Important Point About Corporations

I had the great pleasure of speaking at a Yale conference this week on my money and politics work, at a conference co-sponsored by the Abrams Institute. That’s the work of Floyd Abrams, the nation’s leading First Amendment lawyer.  We had a very interesting exchange when I presented two chapters of Plutocrats United, including one of the chapters that criticizes Floyd’s views of Citizens United in particular. Floyd was beyond gracious, and offered helpful and constructive comments on the work.  He also pointed me to a recent speech he gave, “Liberty is Liberty,” and this part about the Fist Amendment rights of corporations.  Here’s the key part:

So let me personalize this is a bit. It is true that when I think of clients that I or my Firm have represented in First Amendment cases, I think immediately of some individuals – Judith Miller for one, and more recently,New York Times journalist James Risen, who my Firm represented on a pro bono basis.

But I also think of corporations. Not just enormous media corporations but ones like Barnes & Noble, that I represented some years ago with respect to a subpoena issued by the Office of Special Prosecutor Kenneth Starr in an effort to learn what book Monica Lewinsky had purchased as a gift for President Clinton. And of the Brooklyn Museum, which then New York City Mayor Rudolph Giuliani fought to close down because he disapproved of some of its art. And of a motion picture company that sought advice from us as to whether a scene in a much honored film it had made which contained a scene, filmed abroad,  showing the 17 year old star of the film sexually entangled with an older female star could be said to have violated American child pornography laws. And of a number of liberal arts colleges around the country that weighed in in the Supreme Court, in briefs we wrote for them, on the First Amendment impact on educational institutions if affirmative action was ruled unconstitutional. And of a tobacco company I represented in a challenge to the Food and Drug Administration seeking to require them to place on 50% of each of their packs grotesque pictures of dead or dying people who had smoked. And I think of the fact that until last month, when a case I had been actively involved in settled, I devoted a great deal of my time representing a credit rating agency and arguing that when the Department of Justice commenced a civil action against it and only it  arising out of ratings all but identical with those of other rating agencies and my client was the only one that had downgraded the debt of the United States, that the Government had violated the First Amendment because it is not permitted under the First Amendment to retaliate against its critics by using the law in a selective fashion.

You may agree or disagree with the positions we took or the clients for whom we took them. But one thing is common to all of the examples I have just cited to you. No one in any of these matters — not any opponent, not any judge, no one — said anything to the effect that since our client was a corporation that it had no First Amendment rights and should not be heard to say that those rights had been violated. I do not exaggerate when I say that if anyone had said that in court, he or she would have been laughed out of it.

Yet much of the debate about the Citizens United case sounds as if it was shocking for the Supreme Court to have held that corporations receive First Amendment protection at all. The opinion for the Court, written by Justice Anthony Kennedy, cited 25 cases, including ones involving for-profit non-media corporations, in which First Amendment protection had been afforded to corporations. Even Justice John Paul Stevens’ dissenting opinion said that “[w]e have long since held that corporations are covered by the First Amendment.” Yet listen to a different part of Justice Stevens’ opinion in which he states that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” – as if that wiped out all those First Amendment cases.  Or to Senator Elizabeth Warren, instructing us that “corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die.” All true and yet all unresponsive to why the First Amendment, as it has so often been held to do, should not be held to protect the speech of corporations as well as “real” people. Or of New York University Law Professor Burt Neuborne writing that unlike corporations, human beings “die, do not enjoy economic advantages like limited liability, and, most important, have a conscience that sometimes transcends crude economic self-interest.” These differences, Professor Neuborne argued, “raise a threshold question . . . about whether corporations are even in the First Amendment ballpark.”

Read the whole thing.

 

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“Racial Gerrymandering’s Questionable Revival”

I have posted this draft Essay on SSRN, forthcoming in the Alabama Law Review‘s symposium on the 50th anniversary of the Voting Rights Act.  Here is the abstract:

Like history, the racial gerrymandering cause of action has repeated itself, the first time as tragedy, the second time as farce.

In the 1990s, conservative members of the Supreme Court recognized a new cause of action, grounded in the Fourteenth Amendment’s Equal Protection Clause, of an “unconstitutional racial gerrymander.” The claim was not one, long recognized, for the intentional dilution of black votes through the manipulative drawing of district lines. Instead, it was a shaky, ephemeral claim based solely on appearances. Racial gerrymandering is an “expressive harm,” aimed at preventing jurisdictions from sending an impermissible “message” by separating voters on the basis of race without adequate justification. In practice, the cause of action helped limit attempts by the U.S. Department of Justice to force jurisdictions then covered by Section 5 of the Voting Rights Act to create more majority-minority voting districts which tended to vote Democratic. Sometimes doing so helped Democrats; at other times the concentration of reliable Democratic voters helped Republicans. Within a decade, however, racial gerrymandering claims seemed to wither away, as the Court used other methods to stop the Department from reading the Act too broadly.

In 2015, the Supreme Court revived racial gerrymandering claims. In Alabama Legislative Black Caucus v. Alabama, the four liberals on the Court and Justice Kennedy agreed with Democrats and minority voters that the state of Alabama engaged in an unconstitutional racial gerrymander when it passed a legislative districting plan which over-concentrated black voters in majority-minority districts in ostensible compliance with the Voting Rights Act. There was great irony in the use of the racial gerrymandering cause of action by minority voters who had rejected it in the 1990s, in its acceptance by liberal justices, and in the defense of race-based redistricting by Alabama Republicans and some conservative Supreme Court justices. While racial gerrymandering has for now become a useful tool for Democrats and minority plaintiffs to fight certain Republican gerrymanders, it is no more coherent or justified now than it was the first time the Court recognized it in the 1990s.

This Essay, written for an Alabama Law Review symposium on the 50th anniversary of the Voting Rights Act, proceeds in three parts. Part I briefly describes the emergence of the racial gerrymandering cause of action in the 1990s and the critiques made of it. Part II briefly describes the circumstances leading up to the 2015 Alabama case and Court’s questionable revival of the racial gerrymandering claim. Part III argues that the racial gerrymandering claim is no more defensible when used by Democrats or minority voters than by conservatives or Republicans. No doubt the Alabama legislature used compliance with the Voting Rights Act as a pretext to pack more reliable Democratic voters into a smaller number of districts to help Republicans in the state overall. But that behavior should be policed as either a form of impermissible racial vote dilution or as inappropriate partisan behavior. In the end, the Supreme Court has relied upon the incoherent racial gerrymandering claim because lacks the right tools to police certain political conduct which might be impermissibly racist, partisan, or both. Liberal and conservative scholars have long recognized that the Voting Rights Act’s enforcement and interpretation can have partisan implications and motivations. The same is now true for racial gerrymandering claims, especially given the great overlap of race and party categories in the South.

This is very much a work in progress. Comments welcome!

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“The Clintons, a luxury jet and their $100 million donor”

Must-read WaPo:

Giustra, 57, a Vancouver, B.C.-based mogul whose eclectic business interests include founding Lionsgate Entertainment and investing in gold mines and an olive oil company, has come to symbolize a relatively new but substantial category of Clinton backers: foreign donors who are not legally eligible to contribute to U.S. political candidates but grew close to the Clintons through the charity….

Last week, the Clinton Foundation acknowledged that an affiliated Canadian charity founded in 2007 by Giustra kept its donors secret, despite a 2008 ethics agreement with the Obama administration promising to reveal the New York-based foundation’s donors.

The foundation said the arrangement conformed with Canadian law. But it also opened a way for anonymous donors, including foreign executives with business pending before the Hillary Clinton-led State Department, to direct money to the Clinton Foundation.

 

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“F.E.C. Can’t Curb 2016 Election Abuse, Commission Chief Says”

Front page NYT Eric Lichtblau:

The leader of the Federal Election Commission, the agency charged with regulating the way political money is raised and spent, says she has largely given up hope of reining in abuses in the 2016 presidential campaign, which could generate a record $10 billion in spending.

“The likelihood of the laws being enforced is slim,” Ann M. Ravel, the chairwoman, said in an interview. “I never want to give up, but I’m not under any illusions. People think the F.E.C. is dysfunctional. It’s worse than dysfunctional.”

Her unusually frank assessment reflects a worsening stalemate among the agency’s six commissioners. They are perpetually locked in 3-to-3 ties along party lines on key votes because of a fundamental disagreement over the mandate of the commission, which was created 40 years ago in response to the political corruption of Watergate.

Some commissioners are barely on speaking terms, cross-aisle negotiations are infrequent, and with no consensus on which rules to enforce, the caseload against violators has plummeted.

The F.E.C.’s paralysis comes at a particularly critical time because of the sea change brought about by the Supreme Court’s decision in 2010 in the Citizens United case, which freed corporations and unions to spend unlimited funds in support of political candidates. Billionaire donors and “super PACs” are already gaining an outsize role in the 2016 campaign, and the lines have become increasingly stretched and blurred over what presidential candidates and political groups are allowed to do.

 

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Unanimous 9th Circuit Panel Rejects CCP Challenge to CA Disclosure Laws

Center for Competitive Politics v Harris:

In order to solicit tax deductible contributions in California, a non-profit corporation or other organization must be registered with the state’s Registry of Charitable Trusts. Cal. Gov. Code § 12585. To maintain its registered status, an entity must file an annual report with the California Attorney General’s Office, and must include IRS Form 990 Schedule B. The Internal Revenue Service (IRS) requires non-profit educational or charitable organizations registered under 24 U.S.C. § 501(c)(3) to disclose the names and contributions of their “significant donors” (donors who have contributed more than $5,000 in a single year) on Form 990 Schedule B. The Center for Competitive Politics (CCP), a non-profit educational organization under § 501(c)(3), brings this lawsuit under 42 U.S.C. § 1983, seeking to enjoin the Attorney General from requiring it to file an unredacted Form 990 Schedule B. CCP argues that disclosure of its major donors’ names violates the right of free association guaranteed to CCP and its supporters by the First Amendment. CCP appeals the district court’s denial of CCP’s motion for a preliminary injunction to prevent the Attorney General from enforcing the disclosure requirement. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.

MORE from the LA Times.

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Hillary Clinton Apparently Following Jeb Bush Super PAC Outsourcing Model

WaPo:

The shake-up is being driven by concerns among Clinton advisers that the group needs to be led by a close ally who has been embedded in the former secretary of state’s political world and will be able to anticipate the needs of the campaign.

While super PACs are not allowed to coordinate strategy with candidates, the independent big-money groups are increasingly functioning asextensions of the official campaign operations. Former Florida governor Jeb Bush has devoted the last several months to raising tens of millions for his super PAC, Right to Rise, which is expected to be run by Mike Murphy, one of his top political advisers.

“When you look at what Jeb Bush is doing, everybody knew super PACs were going to be important, but that took it to a whole new level,” said the person familiar with the Priorities discussions.

This is a bad development.

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“How Google Could Give 2016 Hopefuls an Edge”

WSJ Wash Wire:

The Walker campaign was so aggressive in 2014 that Google highlighted its efforts in a just-released case study about the midterm campaigns.

Among the findings: Mr. Walker’s re-election team raised more money from ads pegged to Google searches than it spent to buy space above those search results, an unusually high return-on-investment for political campaigns; his team also worked with the company to reach more than 5 million targeted voters in key ZIP codes through YouTube ads in the weeks leading up to Election Day.

This emphasis on web advertising and social media could give the most organized candidates a slight edge heading into the 2016 White House race because voters are tougher than ever to target through the use of traditional television ads. As viewing habits change, more and more Americans are turning to Netflix or set-top boxes that allow them to record their favorite television shows and skip through the commercials. Some people are ditching their TVs entirely in favor of the Internet.

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“GOP Prosecutor Defends Scott Walker Criminal Probe, Says ‘Let’s Get the Truth Out'”

An important corrective to some of the hysteria about the John Doe Wisconsin case:

Two career prosecutors–one a Republican, one a Democrat–just called Scott Walker a liar, and not a single national newspaper took notice.

The comments came after Walker, an unannounced candidate for president, used an appearance on an Iowa radio show to publicly attack a bipartisan criminal investigation into his campaign as a “political witch hunt” with the aim of “trying to intimidate people.”

The Special Prosecutor leading the probe, Francis Schmitz–a Republican who voted for Walker in 2012–fired back, stating, “these recent allegations are patently false.”

“His description of the investigation as a ‘political witch hunt’ is offensive when he knows that the investigation was authorized by a bipartisan group of judges and is directed by a Republican Special Prosecutor appointed at the request of a bipartisan group of district attorneys,” Schmitz said.

Milwaukee District Attorney John Chisholm, a Democrat whose office initiated the probe, added that, “Stripped of niceties, Mr. Schmitz is saying the governor is deliberately not telling the truth.”

Then, the prosecutors threw down the gauntlet.

Schmitz called upon the Governor “to join me in seeking judicial approval” to release sealed documents “which would be responsive to the allegations that have been made.” Chisholm agreed: “the truth is always a defense, so let’s get the truth out in a legal manner, not through lies, distortions and misrepresentations.”

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Further Consideration of WI John Doe Case at #SCOTUS Postponed to Later Date

John Elwood notes:

Finally – or should we say “fine-uh-leee!,” we have O’Keefe v. Chisholm, 14-872, which will not be considered at the May 1 Conference because it has already been rescheduled a second time. The petitioners are supporters of Wisconsin Governor and GOP presidential primary leading light/future also-ran (we at Relist Watch always strive for balance) Scott Walker. They claimed that as part of an investigation into Governor Walker, they were targeted for abuse and intimidation by the Milwaukee District Attorney. They sought injunctive and monetary relief under Section 1983 against the district attorney, claiming that the investigation was in retaliation for their exercise of First Amendment rights. The district court found that Younger abstention was improper and denied the district attorney’s claim of qualified immunity. The Seventh Circuit reversed, holding that the Anti-Injunction Act barred the claims while a state court proceeding was ongoing and that the district attorney was entitled to qualified immunity. The petition asks (1) “whether considerations of ‘equity, comity, and federalism’ insufficient to support abstention can override Mitchum [v. Foster]’s holding that 42 U.S.C. § 1983 is an ‘expressly authorized’ statutory exception to the Anti-Injunction Act;” and (2) whether “government officials may be held liable for subjecting citizens to investigation in retaliation for First Amendment-protected speech and association, particularly where non-retaliatory grounds are insufficient to support the investigation.

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Horwitz and Kerr on the Future of Law Professor Blogging

There’s been a very interesting discussion at Prawfblawg about the future of law professor blogging.  Paul Horwitz offers important thoughts here stemming from a conversation we recently had. If you put that together with Orin Kerr’s insightful post on legal blogging and “influence versus credit,” I think that pretty much summarizes where I am on all of this.

Bruce Cain once asked me if I had an exit strategy when I was tired of blogging. I didn’t then and I still don’t.  But I’ll come up with one if and when the time comes.

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Off to Yale

As I’ve noted, I’m delighted to be on a plenary panel about campaign finance and the First Amendment with Tabatha Abu El-Haj and moderated by Jack Balkin at Yale’s 3rd Freedom of Expression Scholars conference on May 2 and 3.  The conference is co-sponsored by the Floyd Abrams Institute at Yale–and I’ll be presenting the two chapters of my upcoming Plutocrats United book which deal with First Amendment critics of reform, including Floyd.  Should be fun.

And thanks to Ron Collins for the shoutout about the book and conference.

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James Sample on Williams-Yulee and The Future of Judicial Campaign Regulation

The following is a guest post from James Sample of Hofstra, who has been doing very important work in the area of judicial elections, filling a key void left by Roy Schotland’s passing. Here are James’s thoughts:

As Rick’s initial post indicated, Williams-Yulee is a huge victory for those concerned with cash in the courtroom. It is, moreover, a surprise victory for the broader judicial-elections-are-different premise. I tend to believe that the solicitation bans themselves are of little moment, and are perhaps even occasionally counterproductive vis-a-vis their intended aims insofar as they allow states and judicial candidates, having adopted the patina of a solicitation ban, to pretend that the candidates are unaware of who is contributing and/or spending. Whether, at some point, that was accurate, it is rarely accurate in the internet age, at least not where there is, as there certainly should be, robust disclosure. As readers of Rick’s blog know well, contributors, especially major contributors and major independent expenditure supporters, know how to make their support known to those whom they want to know. Is upholding the solicitation ban helpful for the egregiously coercive in-person shakedown scenarios? Yes. The greater value, though, of Williams-Yulee is Chief Justice Roberts’ emphatic rejection of White’s elections-are-elections canard.

What I find most peculiar about the opinion, as Rick’s post noted of course, is Chief Justice Roberts citing Caperton in which he dissented so vigorously, while in Justice Kennedy’s dissent there is nary a mention of Caperton, which he authored, but there is instead a focus on White.

For Justice Kennedy, and despite Justice O’Connor’s years of work and expressions of regret vis-a-vis White, any speculation as to an eroding of the rigidity of his position in White was not only premature, but inaccurate. The ex ante prohibition of speech, regardless of the nature of the office being sought, is clearly, for him, a constitutional non-starter even though, at least in the extreme case, he supports Due Process as a basis of mandatory disqualification based on expenditure support. On both the ex ante and ex post aspects of that, Chief Justice Roberts is now in the opposite camp in at least one narrow circumstance.

Combining the pertinent campaign finance decisions and the two major “canons” decisions, I am left with one overriding impression in terms of prospective judicial campaigns: Why would any judicial candidate even bother soliciting contributions through their campaign apparatus? Expenditures not contributions are, and will be more than ever, the whole ball game.

Justice Kennedy takes an absolutist position that independent expenditures unequivocally cannot corrupt (Citizens United, McCutcheon etc…). In those decisions, not to mention in ATP v. Bullock, in which the Court refused the state of Montana even the opportunity to stand in the well of the Supreme Court and say, to the Court face-to-face, “Yes, independent expenditures can corrupt and we have a documented empirical record contradicting the Court’s conclusory assertions to the contrary.” Justice Kennedy and Chief Justice Roberts are in lockstep on that. I.e., Chief Roberts is copacetic with banning a signed letter seeking a modest contribution, while Justice Kennedy is not. But neither is particularly troubled by independent expenditure support totaling six and sometimes seven figures per spender. It took facts as extreme as those in Caperton to get Kennedy’s support for the modest remedy of ex post recusal. Add in increasingly impotent coordination realities, and no serious, sophisticated judicial candidate should ever come close to needing to engage in the kind of direct solicitation addressed in Williams-Yulee.

In sum, Williams-Yulee is indeed a victory for those who care about the integrity of the courts. Our dear, late friend Roy Schotland would love the judge’s-are-different emphasis. Roy would celebrate the decision and rightly so. He would do so, however, in very much the sober – and sobering – manner that Rick’s excellent LA Times piece does in noting, in particular, that the “campaign finance situation overall remains dire.”

Even in judicial elections, Williams-Yulee won’t change that. Finally, there is one wonderful postscript that seemed almost unthinkable until yesterday: there are now six justices on the current Court who have, in at least one case, endorsed the premise that judicial elections are different. Does that mean the Court might uphold expenditure limits on judicial races? Almost certainly not, but the possibility seems less distant today than yesterday. And it certainly seems less distant than it did six years ago.

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“Roles of Presidential Super PACs Expanding”

WSJ:

The 2016 election cycle is seeing an expansion not just of super PAC fundraising but of the PACs’ responsibilities. The main reason: Super PACs can accept donations of unlimited size, while donations to candidate campaigns, such as Carly for President, are capped at $2,700 per election. The new arrangement means fewer donors, writing larger checks, can bankroll the basics of electioneering, freeing candidates from having to raise large sums in small increments. But it also raises thorny questions, because super PACs and candidates are barred by the Federal Election Commission from coordinating their strategy and messages….

The rules barring coordination between campaigns and super PACs are rarely enforced. The FEC often deadlocks on whether to investigate complaints, resulting in no action. Criminal charges have been even rarer in the years since super PACs gained prominence after the Supreme Court’s Citizens United decision in 2010….

 

Because Mr. Bush hasn’t yet announced his candidacy, he legally can solicit donations of unlimited size for the super PAC, a freedom that formal candidates lose under FEC rules. Mr. Bush told donors this week in Miami Beach that he had set a new GOP fundraising record, though he didn’t disclose a total.

A longtime Bush adviser, Mike Murphy, is poised to run the super PAC once it splits from the official campaign apparatus. Mr. Bush’s super PAC will have its own team for gathering and analyzing voter data, as well as its own press operations. There is also a separate policy shop independent of the campaign. An aide to Mr. Bush said the campaign, once it begins, won’t cede any of its data or voter contact operations to the super PAC.

The $2,700 federal cap on an individual’s donation to a campaign was designed to bar any one donor from having outsize influence on a candidate. Critics say super PACs, which face no such limits, help candidates circumvent the rule. At the same time, the FEC rule that campaigns cannot coordinate their strategy with super PACs means that candidates carry some peril in outsourcing campaign responsibilities to a super PAC, campaign-finance experts warned.

See my earlier Slate piece, Jeb the Destroyer.

 

 

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“IRS May Be Trying to Stop Tax Exemption of Karl Rove’s Crossroads GPS”

Bloomberg:

The IRS may be trying to block the tax exemption of one of the largest politically active nonprofit groups, Crossroads Grassroots Policy Strategies, an organization founded by Republican strategist Karl Rove.

The oblique disclosure can be found between the lines of an inspector general’s report released on Thursday, which said that 149 of 160 stalled applications from nonprofits with potential ties to politics have been resolved. Of the other 11, six are in litigation with the IRS — which Crossroads isn’t — and five have received proposed denial letters or are appealing.

That suggests that the Internal Revenue Service has sent Crossroads a denial letter. Crossroads is one of the most politically involved nonprofit groups, and its bid for tax exemption is being closely watched by campaign-finance lawyers.

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“From Supreme Court, a mixed blessing on campaign finance limits”

I have written this LA Times oped. It begins:

The Supreme Court offered a pleasant surprise this week to those of us worried about the role of money in elections. In a 5-4 opinion written by Chief Justice John G. Roberts Jr., the court on Wednesday upheld a rule limiting certain fundraising activities for judicial candidates. But don’t expect Williams-Yulee vs. State Bar to lead to a more widespread return to campaign-finance sanity; the ruling applies only to judicial elections and Roberts isn’t about to concede that free-flowing donations are tainting the political system.

It concludes:

There was some pleasure in watching Roberts have to defend himself against his fellow conservatives. Usually he waxes poetic about unfettered campaign money as if it were a great and dignified example of the American commitment to free speech. In this instance, Roberts bristled at the suggestion that he was supporting “a latter-day version of the Alien and Sedition Acts.”

Reformers can justly celebrate what Williams-Yulee means for judicial elections. But let’s not pretend Roberts has seen the light. The next time a nonjudicial fundraising case reaches the Supreme Court, he is likely to be the one yelling about “censorship.” Despite this win on judicial elections, the campaign finance situation overall remains dire.

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