Judge Merrick Garland, now nominated by President Obama to serve on the Supreme Court, was on the United States Court of Appeals for the DC Circuit when it considered SpeechNow v. FEC, the case that helped create Super PACs.  Judge Garland joined a unanimous opinion written by Judge Sentelle. I do not believe that Judge Garland’s vote in SpeechNow indicates how he would vote if, for example, he faced a case asking the Court to overturn Citizens United.  It doesn’t say anything one way or the other. Let me explain.

In Buckley v. Valeo, the Supreme Court held that individuals have a constitutional right to spend money independently in elections. But the court upheld contribution limits, and in a later case (CMA v. FEC), the court upheld limits on contributions to political action committees by individuals (set at $5,000).  Before Citizens United, there was a fierce debate in the academic community as to whether CMA stood for the proposition that it was constitutional to limit contributions to PACs which make only independent expenditures. The issue was not resolved.

In Citizens United, the Supreme Court held that not only individuals, but also corporations (and presumably labor unions) have a constitutional right to spend money independently in elections. But (as I explain in this Michigan Law Review article), Citizens United did much more than just include that holding. It also narrowed the definition of corruption and rejected other arguments that the Court had before relied upon to uphold campaign finance laws.

When SpeechNow got to the DC Circuit, the Supreme Court’s signal was clear:the logic was that iif independent spending can never corrupt (as the Supreme Court held in Citizens United), then contributions to fund independent spending by a PAC cannot corrupt. The Citizens United case is cited 26 times(!) in SpeechNow.  Look, if I were a judge on the DC Circuit having to follow Supreme Court precedent I would have voted the same way in SpeechNow, despite the fact that I think Citizens United (and Buckley) should be overruled. That’s not the job of a Circuit Court judge.

So I don’t think we can read anything into Judge Garland’s SpeechNow vote as to how he would rule to overturn Citizens United or in other campaign finance cases. In coming days I will look at other opinions by Judge Garland in the election law and see what that might say about him as a Justice (I have been doing this since the nomination of John Roberts).  So the jury is still out on this question.