All posts by Bob Bauer, guest-blogger

Arizona on the Mind: A Response to Rick Pildes

My friend and NYU colleague Rick Pildes, anticipating the Supreme Court’s ruling in the Arizona redistricting case, argues strongly for the Court to let independent redistricting commissions flourish.  The question presented – – whether “legislature” can be read to mean an independent, unelected body to which complete redistricting authority is delegated – – strikes Rick as somewhat beside the point.

The Framers could not have thought about this question, Rick writes, and so could not have ruled out this institutional innovation.  While “not naïve about the risk that officeholders would try to aggrandize their own power”,  they “didn’t have in their mental toolbox the possibility of the kind of specialized, relatively independent institutions that later emerged for tasks like drawing election districts or regulating other aspects of the democratic process.”  Other democracies have worked successfully with these institutions, and Rick contends that ours should be able to do so as well, as an effective means of addressing partisan self-interestedness in the drawing of district lines.

We will see Monday, of course, how all this goes.  But Rick’s interesting argument relies on a few assumptions that merit a close look.

Continue reading Arizona on the Mind: A Response to Rick Pildes

Share this:

On The Meaning(s) of Citizens United

As Citizens United marks its second anniversary, most of the commentary has focused on the advanced First Amendment “personhood” recognized for corporations–on the conferral of “free speech” rights permitting them to directly intervene in elections.  And political practice has quickly followed changed constitutional theory:  Citizens United may not have created the SuperPACs, but it has freed them to solicit and accept corporate money.  Certainly in these respects, the case merits the intense attention it has received.  In time, however, the depth of the Court’s skepticism toward federal campaign finance law, the post-Watergate era reforms dating back to the l970’s, may come to define this case as much as the solicitude shown toward the corporate political actor. Continue reading On The Meaning(s) of Citizens United

Share this:

Justice Kagan in Dissent: A New Phase in the Court’s Conflict Over Campaign Finance Jurisprudence?

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?

Share this: