May 03, 2010

Adam Liptak's New NYT "Sidebar" Column on RNC Soft Money Case: Another View

You can read the interesting column here. I have two observations about the case and the column.

1. Adam thinks the Supreme Court is "quite likely to hear the case, perhaps even over the summer." I am not so sure. Here are some reasons why the Court may simply summarily affirm in the case. First, the Court likely will think the lower court got it right. The case seeks an "as applied" exemption to the soft money rules, but as I read the lower court opinion, the "as applied" challenge does not seem all that strong. Basically the RNC is offering to create a walled off fund to try to get around the kind of corruption that the Court found could happen with soft money. It seems the stronger basis for the RNC's claim is to argue that McConnell's holding upholding the facial challenge to the soft money ban needs to be overturned, but that issue is not presented in the case. Remember that Justice Kennedy also voted to uphold a portion of the soft money ban, and his views on this do not appear as strongly against the corruption argument as some other Justices in the (new) majority. Second, the Court has heard a lot of campaign finance cases recently, and may not be interested in hearing another now. First, so many of these cases are up on mandatory jurisdiction (this one is too), and there's a certain amount of fatigue in hearing these cases, which was expressed by the Chief Justice during the Citizens United oral argument. The Court also may be gun-shy after all the criticism of Citizens United in delving into all of this again, so soon. Third, the Court may not want to do something that will upset the rules in the midst of the election season.

2. Adam quotes Burt Neuborne's 1997 statement, :Buckley is like a rotten tree...Give it a good, hard push and, like a rotten tree, Buckley will keel over. The only question is in which direction." Though I too have made statements like this in the past, in my new book chapter, The Nine Lives of Buckley v. Valeo, I explain why I don't think the Court is likely to overrule Buckley soon, despite moving in a sharply deregulatory direction.

Posted by Rick Hasen at May 3, 2010 11:40 AM