June 26, 2006

More on Chief Justice Roberts' Views in the Campaign Finance Decision: What Happened After Oral Argument?

This post follows up on my earlier initial thoughts on the Vermont campaign finance case.

At oral argument in the Vermont contribution limits case, Chief Justice Roberts was quite skeptical of the state's arguments. See pdf pages 26-28 for the Chief's line of questioning, which questioned whether there was really a problem with political corruption in Vermont. Many people I spoke with left the argument with the sense that the Chief Justice was likely to side with Justices Thomas and Scalia, ruling all contribution limits unconstitutional.

But the Chief Justice did not vote with Justices Scalia and Thomas. He did not even join in Justice Alito's separate opinion which appears an open invitation for someone to argue that all of Buckley should be overruled and stare decisis should not be followed.

What explains his vote? There are two ways of reading it. One is that the Chief Justice, at least as of this point, sincerely believes that many campaign contribution limits (except those that are low like Vermont's) are indeed constitutional. (That opinion of course can change. As Ned Foley pointed out in today's conference call, there is an echo here of the three judge opinion in Colorado Republican I, which the Court issued before Justices Breyer and Souter got their "sea legs" on the campaign finance issue.)

The other possibility is that the Chief was voting strategically. As I suggested in my recent article, No Exit? The Roberts Court and the Future of Election Law, 57 South Carolina Law Review 669 (2006), the Court could move slowly in this area, in the name of judicial modesty and stare decisis, to eventually dismantle Buckley. By deciding the case in this way, the Chief Justice gets to (1) strike down the Vermont limits; (2) put off a blockbuster and controversial issue to another day, knowing (because of the nature of Justice Breyer's test, that this issue will return to the Court); (3) signal as a more general matter that he is more moderate than Justices Scalia and Thomas, which could help him in both how the public views him and how often he can get the votes from the more liberal Justices in other cases.

I don't mean to single out the Chief as voting strategically. I think Justice Breyer's opinion was quite strategic too. Distinguishing Shrink Missouri was the best he could hope for. In this case, unlike Shrink Missouri, he had to emphasize the danger of incumbency protection and de-emphasize deference to the expertise of the legislature. (And I actually think he may have the balance better this time---something I plan to write about soon.) Had Justice O'Connor remained on the Court, it would have been very interesting to see how Justice Breyer would have voted, or what opinion he would have written in this case. But he sees the handwriting on the wall, and is in a damage control mode.

In the short run, Chief Justice Roberts' vote is good news for those of us who think contribution limits should be upheld. I think most lower courts examining most state and local campaign finance laws will uphold them. But not all will, and these cases will eventually work their way back to the Supreme Court. In the long run, it may not be good news at all. As I wrote in my South Carolina article: "It may be that in 2016, individuals, corporations, and unions will be free to give as much money as they want to any candidate or group, subject to the filing of disclosure reports."

Posted by Rick Hasen at June 26, 2006 02:25 PM