The last campaign finance decision issued by the Supreme Court, the Arizona public financing case, Arizona Free Enterprise Club’s Freedom PAC v. Bennett, 131 S. Ct. 2806 (2011) (hereinafter Bennett), was decided largely as expected, but it has struck observers as signifying more than just one more loss for the reform side. Mostly the intense interest was stirred by Justice Elena Kagan’s dissent–a debut performance marked by its combativeness, sharpness of tone, and rhetorical punch. See, Jeffrey Rosen, Strong Opinions. This Year’s Biggest Surprise at the Supreme Court: Elena Kagan’s Prose, The New Republic, July 28, 2011. The decision came across as a summation of the sharp divide on the Court–a clash over first principles, with Justice Kagan bringing a fresh voice to the long-running conflict. But there may be still more to it.
2012 will be the tenth anniversary of the enactment of McCain-Feingold. Over the last decade, this reform dominated directly or indirectly the debate between those Justices looking to preserve, and those dedicated to sharply cutting back, legislative authority to impose controls on campaign finance. First came the core test of the reform law’s constitutionality in McConnell v. FEC, 540 U.S. 93 (2003), and then a series of more discrete challenges–to restrictions on soft money-paid “issue advertising” and corporate independent spending, and to protections against self-financed or “millionaire” candidates. For the Roberts majority, in the words made famous by the Chief, “enough is enough”: the government had gone too far, disregarding the limits on its authority in the pursuit of “equality” and, from time to time and more basely, of incumbent advantage, and subjecting free political speech and association to unprecedented constraints. FEC v. Wisconsin Right to Life, Inc., 551U.S. 449, 478 (2007). But through this period, and clearly by time the Arizona case was decided, it had become clear that the Roberts majority had begun to carry the attack beyond the more controversial provisions of McCain-Feingold, now directing it at the more established foundations for the regulation of campaign finance.
Justice Kagan’s dissent joins issue with the Chief Justice and the other members of the majority on just this ground. And she does so by insisting on strong but limited legislative authority, one grounded conservatively in the authority of the landmark Watergate-era case of Buckley v. Valeo, 424 U.S. 1 (1976), and tied tightly to the objective of limiting corruption and its appearance. How this frames the minority’s differences with the majority can be seen in the Chief’s response, which is largely to insist that the legislature really had in mind an impermissible motive, the leveling of the electoral playing field, and that any additional declared, if suspect, interest in fighting corruption was insufficiently weighty to save the Arizona law. In the choice of precedent, the Chief also reveals much: he relies on Davis v. FEC, 554 U.S. 724 (2008), a case about McCain-Feingold in which the Court struck down the “millionaire’s amendment.” Where Justice Kagan sees Buckley, the Chief sees McConnell; he is litigating the application of Buckley on terms drawn from the debate over the most disputed provisions of McCain-Feingold. Continue reading Justice Kagan in Dissent: A New Phase in the Court’s Conflict Over Campaign Finance Jurisprudence?