"Justice Souter: Campaign Finance Law's Emerging Egalitarian"

I have posted the following draft on SSRN (forthcoming Albany Government Law Review). Here is the abstract:

This Essay, written for the inaugural issue of the Albany Government Law Review, explores the campaign finance jurisprudence of Justice Souter. Justice Souter wrote many of the Supreme Court's recent opinions upholding a variety of campaign finance regulations. I suspected that his attempt to harmonize his deferential approach with prior precedent was done to please Justice O'Connor, a decisive fifth vote in many of these cases. Justice O'Connor's retirement and replacement with Justice Alito has brought a shift in the Supreme Court's campaign finance jurisprudence toward deregulation, relegating Justices Ginsburg, Souter, Stevens and Breyer to the minority. This shift to the minority has freed Justice Souter to some degree to express his own views of the appropriate balance between the First Amendment and other interests in the campaign finance cases (though he still may be tempering his own views somewhat to remain consistent with his earlier opinions). His recent dissenting opinion in FEC v. Wisconsin Right to Life is the clearest exposition yet of Justice Souter's jurisprudence in the area, unencumbered by the need to capture a fifth vote.

As this Essay argues, Justice Souter's jurisprudence as expressed in WRTL demonstrates an emerging egalitarian view of campaign finance law. It is a view that is broadly consistent with Justice Breyer's “participatory self-government” rationale for campaign finance regulation but more deferential to legislative branches about the means of achieving political equality. Though there were elements of egalitarianism in Justice Souter's earlier opinions, WRTL goes further. But the Justice's egalitarian ideas are not yet fully formed, and there is room for questioning some of his implicit arguments and assumptions.

Part I of this Essay describes Justice Souter's campaign finance views expressed in cases while Justice O'Connor remained on the Court. Part II turns to Justice Souter's freer approach in WRTL. It first gives relevant background about the WRTL case. It then describes Justice Souter's views in dissent, which sets forth a view of the government's compelling interest in promoting "democratic integrity." It then argues that the "democratic integrity" interest, though couched in some anticorruption language, actually expresses a nascent egalitarian approach to campaign finance regulation. The Part concludes by noting that, unlike Justice Breyer, Justice Souter has been insufficiently attentive to the problem of incumbency protection in campaign finance regulation. In addition, Justice Souter has yet to fully explore three issues in his emergent egalitarian approach related to (1) his critique of total campaign spending; (2) his views on the connection between campaign spending and public cynicism about the political process; and, most importantly, (3) his treatment of labor unions.

Comments welcome!

Posted by Rick Hasen at October 1, 2007 09:12 AM